asking the tiger for his skin: rights activism in china

Fordham International Law JournalVolume 30, Issue 4 2006 Article 6

Asking the Tiger for His Skin: RightsActivism in China

Eva Pils∗

∗

Copyright c©2006 by the authors. Fordham International Law Journal is produced by The Berke-ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj

Asking the Tiger for His Skin: RightsActivism in China

Eva Pils

Abstract

Based on a discussion of consequentialist, pragmatist, and deontological forms of reasoningas applied in debates about Chinese rights-defending, this Article makes two related observations.First, some Chinese rights defenders assess actions merely by whether they will promote insti-tutional reform. They may reject courses of action because they would consider themselves re-sponsible for their bad consequences, such as official reprisals. Their attitude puts them in dangerof blinding themselves to the limits of legal reform in China’s current constitutional and politicalstructure. Second, according to the more radical view also described here, the case for speakingout against certain wrongs does not rest on predictable consequences. Instead, it rests on the ideaof rights-defending as a strict moral obligation toward the victims of abuses, as well as towardhuman society and toward oneself. Rights activism, according to this second view, cannot alwaysbe understood as a constructive contribution to the reform of an existing legal system. Whilethe practice of caution and self-restraint arising from awareness of the potentially dangerous con-sequences of rights activism may appear to be the only sensible attitude in the current Chinesecontext, the lawyer discussed here was unable, for what is suggested are fully justified reasons,to practice such caution, as he acted to help those most in need of defense of their rights. Theattitude of lawyers and activists like him not only accentuates the deep contradictions in China’scurrent legal and political system. Their experience also indicates the limits of possible reform.At some point, “radical” rights defenders stop appealing to the existing system’s legal institutions;and as they stop taking that system seriously, they start calling for the creation of a new system,without, at present, describing a method how to create one. It is important to appreciate this furtherimplication of an approach now taken by some of China’s professionally established, prominent,and dedicated rights defenders. After briefly discussing consequentialist, pragmatist, and deonto-logical perspectives on rights activism and institutional law reform strategies in Part II, this Articlefocuses on the more “radical” approach and the criticisms its proponents experienced. This Articlepresents the experience of Gao Zhisheng in his effort to try to “play the system” for a Falungongpractitioner in 2004 in Part III, describing the contradictions of principle he encountered in PartIV, and then moves on to an account of Gao’s and some fellow rights defenders’ increasingly rad-ical actions to “defend rights” in Part V. Finally, it discusses the debates about the consequencesof rights activism in Part VI and about “politicization” of the work of lawyers in Part VII, whichwere triggered by these actions.

ASKING THE TIGER FOR HIS SKIN:RIGHTS ACTIVISM IN CHINA

Eva Pits*

I. INTRODUCTION: THE DEBATE AMONG CHINESE"RIGHTS DE/ENDERS"

In late 2005, a Chinese lawyer named Gao Zhisheng de-cided to address a politically particularly sensitive issue in a par-ticularly provocative way. He published an online call, addressedto China's leadership, to stop the torture of Falungong practi-tioners, substantiating his appeal by detailed descriptions of indi-vidual cases of torture, about which he claimed to have informa-tion from tortured victims themselves.1 Within days, his Beijinglaw firm's license to practice was suspended and he was putunder surveillance by the secret police; but these were not theonly consequences. Following his public call for a hunger striketo oppose State violence, launched a few months later, he wasalso subjected to vehement criticism by other Chinese lawyersand rights activists, who advised, implored, or even angrily re-quested him to stop. At one point, he narrowly escaped beingimprisoned in a yaodong cave by his own brothers in his homevillage in the province of Shaanxi. His experience, whileunique, is in many ways characteristic of the current situation ofChinese rights activists, now often described as "rights defend-ers" in China2

* Assistant Professor, School of Law, The Chinese University of Hong Kong.

Thanks to Cornell Law School's generous support in 2006, which allowed the author toproduce this Article. Thanks to Jerome Cohen, Hualing Fu, Paul Gewirtz, StephenGuest, Michael Dowdle, Tom Kellogg, Benjamin Liebman, Stanley Lubman, AnneliseRiles, Frank Upham, and a Chinese friend for their comments on this Article. Thanksto the China Law Center, Yale Law School, to the School of Law, Chinese University ofHong Kong, and to the Centre for Public and Comparative Law, University of HongKong, for their invitations to present this Article on different occasions. The authorjoins the Fordham International Law Journal in thanking Lujing Chen, Li Wan, and SusanTan, whose extensive and excellent work on the translation of the Chinese-languagesources made publication of this Article possible. The author is also grateful to JenniferMorton, Editor-in-Chief, and the staff of the Fordham International LawJourna4 VolumeXXX, for their tireless work on this Article.

1. See infra note 93 and accompanying text (discussing Gao Zhisheng's letter).2. See Keith Hand, Using a Law For a Righteous Purpose: The Sun Zhigang Incident and

Evolving Forms of Citizen's Action in China, 45 COLUM. J. TRANSNAT'L L. 114, 159 (2007)."Rights defenders" (weiquan renshi), are also known as "rights defense lawyers" (weiquan

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Despite remarkable successes in the past twenty-seven yearsof reform, Chinese law and civil society remain weakened byparty and personal autocracy, and by contradictions betweenrules and principles recognized in different parts of the law andlegal practices. This weakness shapes the experiences of thoseengaged in using the law to fight injustices. "Rights defenders"do not only record and protest the denial of legal rights to Chi-nese citizens. In doing so, they also expose and challenge theinner contradictions of the legal and political system, in particu-lar, the contradiction between the P.R.C. Constitution's newcommitment to constitutional rights, and its old commitment toparty rule and democratic centralism.

To serve both these functions, rights activists tend to em-phasize those aspects of current Chinese law which are consis-tent with the protection of legal rights against State power, anddownplay those aspects which could only be justified by princi-ples of autocracy, such as party leadership.' Rights defendershave to live with contradictions which cannot themselves be dis-cussed freely. They live in conditions of State censorship, peercensorship, and, potentially, self-censorship.

The need to choose strategies in this difficult situation hasproved divisive among Chinese rights defenders, pitting themore cautious ones against those who could be called more radi-cal. Some of the more "radical" activists now take on cases ofpolitical persecution which have no prospect of institutional suc-cess, such as successful court litigation. They speak out againstwrongs which no one at present has any expectation of seeingcorrected, or even just addressed. They describe the contradic-tions as they see them. From the perspective of people working

lushi), and "rights defense protagonists" (weiquanfingying). Id. at 161. For a furtherdiscussion of weiquan, see Weiquan (Rights-Defending), http://crd-net.org/Article/(last visited May 8, 2007). For a discussion of "rights" (quanli) in China, see DEBORAH

CAO, CHINESE LAw: A LANGUAGE PERSPECTIVE 71-92 (2004); STEPHEN C. ANGLE, HUMAN

RIGHTS IN CHINESE THOUGHT: A CROSS-CULTURAL PERSPECTIVE 108-20 (2002).3. For instance, they will say that violations of certain rights by the party-State are

unconstitutional, citing appropriate articles in the Constitution for support. Yet, theparty and State explicitly operate on principles opposed to constitutional scrutiny.However untenable these latter principles may ultimately be, and however much theystand in contradiction with other constitutional principles and mechanisms, they canalso be supported by the text of the P.R.C. Constitution, and are prima facie also part ofcurrent Chinese law. See Hand, supra note 2, at 114, 118, 138-40, 144-47, 157, 159, 162.A Chinese expression cited in a similar analysis is fia xi zhen chang, which means "using alie for a righteous purpose." Id. at 160.

ASKING THE TIGER FOR HIS SKIN

toward institutional reform, it is risky to expose rights violationsand other wrongs when there is no chance of redress, and everychance of persecution for "political" activism, or even of escala-tion into violence on both sides of a dispute. But from the per-spective of the other, more radical side, it would be wrong not todefend those most in need of protection, and useless to pretendthat civil rights cases had no political implications.

The debates among these Chinese rights defenders connectin an important way to the wider contemporary discussions ofhuman rights activism in rapidly changing or "developing" socie-ties. These discussions appear largely dominated by a rule of lawperspective, from which rights activism and cause lawyering areviewed as subservient to rule of law reform goals. In this Article,the author suggests that consideration should be given to a radi-cally different perspective, which may be taken by some of thoseactually engaged in activism. Based on case analysis, on thestudy of online sources some of which are not easily availableoutside China, and on conversations with some protagonists ofcurrent rights activism in China,4 this Article describes how argu-ments addressing the likely consequences of rights activism, wereused to criticize Gao Zhisheng after he began to defend the legalrights of Christians and Falungong adherents. The debate trig-gered by his actions took place mostly toward the end of 2005and in the first half of 2006. Some observers and participants ofthe movement not only think that Gao's action was fruitless; theyalso blame Gao for harmful-according to some, fatal-State re-sponses to rights activism during the past two or three years. Inthe eyes of some, a great chance for beneficial legal develop-ment in China is just now being squandered.5

But in what way should we be concerned with the conse-quences of rights activism, even assuming we can correctly pre-dict them? Based on a discussion of consequentialist, pragma-tist, and deontological forms of reasoning as applied in debatesabout Chinese rights-defending, this Article makes two related

4. Conversations, in some cases several, were conducted in June and July 2006 inBeijing, with eight anonymous rights defenders, all of whom are at the center of theevents covered in this Article, along with at least a dozen or so other rights defenders.Beyond the circle of these rights defenders in a narrow sense, the author had conversa-tions with legal academics and lawyers as well as journalists observing the movement.

5. Apart from the publicized views discussed later on in this Article (especiallythose of Ding Zilin) many such criticisms were expressed in conversation.

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observations. First, some Chinese rights defenders assess actionsmerely by whether they will promote institutional reform. Theymay reject courses of action because they would consider them-selves responsible for their bad consequences, such as official re-prisals. Their attitude puts them in danger of blinding them-selves to the limits of legal reform in China's current constitu-tional and political structure.

Second, according to the more radical view also describedhere, the case for speaking out against certain wrongs does notrest on predictable consequences. Instead, it rests on the idea ofrights-defending as a strict moral obligation toward the victimsof abuses, as well as toward human society and toward oneself.

Rights activism, according to this second view, cannot alwaysbe understood as a constructive contribution to the reform of anexisting legal system. While the practice of caution and self-re-straint arising from awareness of the potentially dangerous con-sequences of rights activism may appear to be the only sensibleattitude in the current Chinese context, the lawyer discussedhere was unable, for what is suggested are fully justified reasons,to practice such caution, as he acted to help those most in needof defense of their rights. The attitude of lawyers and activistslike him not only accentuates the deep contradictions in China'scurrent legal and political system. Their experience also indi-cates the limits of possible reform. At some point, "radical"rights defenders stop appealing to the existing system's legal in-stitutions; and as they stop taking that system seriously, they startcalling for the creation of a new system, without, at present,describing a method how to create one. It is important to appre-ciate this further implication of an approach now taken by someof China's professionally established, prominent, and dedicatedrights defenders.

After briefly discussing consequentialist, pragmatist, and de-ontological perspectives on rights activism and institutional lawreform strategies in Part II, this Article focuses on the more "rad-ical" approach and the criticisms its proponents experienced.This Article presents the experience of Gao Zhisheng in his ef-fort to try to "play the system" for a Falungong practitioner in2004 in Part III, describing the contradictions of principle heencountered in Part IV, and then moves on to an account ofGao's and some fellow rights defenders' increasingly radical ac-tions to "defend rights" in Part V. Finally, it discusses the de-


bates about the consequences of rights activism in Part VI andabout "politicization" of the work of lawyers in Part VII, whichwere triggered by these actions.

II. CONSEQUENTIALISM, INSTITUTIONAL REFORMPRAGMATISM, AND PRAGMATIC SILENCES

The purpose of this section is to create a basis for discussingthe reasons guiding different actors in the story to follow. Thediscussion here is also intended to indicate how their individualconsiderations can be related to a wider academic debate aboutrule of law reform and efforts to introduce constitutionalism inconditions of political authoritarianism. Broadly, an approachdescribed as consequentialist is juxtaposed with an approach de-scribed as deontological. The consequentialist approach is alsodiscussed in its relationship with what has been called "Chineselegal pragmatism."6

Everyday arguments about whether the ends justify themeans, whether one should take a principled stance in a certainsituation, and so on, can all be related to philosophical debatesaround consequentialism. For a more stringent discussion, ithelps briefly to look at these philosophical arguments. Whileconsequentialists7 argue that the moral rightness of an act is de-termined by its good consequences, 8 deontological moral theo-ries claim that there is an obligation to "do the right thing," in-dependent of the consequences. On a deontological account, itis not possible to determine what the right thing is merely bylooking at the consequences of a course of action one is contem-

6. See Robb M. LaKrtiz, Taming a 5,000 Year-Old Dragon: Toward a Theory of LegalDevelopment in Post-Mao China, 11 EMORY INT'L L. REV. 237, 250 (1997) (describing "Chi-nese legal pragmatism" as "continued 'resort to ad hoc legal measures, the separationof legal doctrine from practice, the overemphasis on the instrumental facets of law, andthe placement of policy before law.'") (quoting Edward J. Epstein, Law and Legitimationin Post-Mao China, in DOMESTIC LAw REFORMS IN POST MAO CHINA 19, 22 (1994)).

7. See Walter Sinnot-Armstrong, Consequentialism, in STANFORD ENCYCLOPEDIA OF

PHILOSOPHYn (2006), available at http://plato.stanford.edu/entries/consequentialism.The author also discusses the relationship between consequentialism and utilitarianism,and differentiates between other types of consequentialism beliefs, including: actual,direct, evaluative, maximizing, aggregative, total, and universal. Id.

8. See id. According to consequentialism, the moral rightness of an act is definedby its consequences, rather than by reference to prior history or to some non-conse-quential quality of the act itself.

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plating.9 In many variations, these two viewpoints play out inarguments about legal and moral obligation, in particular aboutthe ethical obligations of lawyers, and in arguments about howto participate in legal reform processes.

In discussions of legal development in transitional Stateslike China, in particular, both consequentialist and non-conse-quentialist forms of argument are used. For instance, it appearsnatural to many to think of rule of law as an end goal of legalreform in China, even though, obviously, there can still be con-troversy about how rule of law should be interpreted. Thinkingof rule of law in this way requires a judgment that rule of law isdesirable as an end consequence of action to be taken now.That judgment can in turn be based on non-consequentialist ar-guments, such as that rule of law is simply required by justice orsome other moral value. Rule of law can also be justified as de-sirable in consequentialist terms, however, for instance, by theargument that it promotes economic development or that it pro-motes social peace.

If rule of law is regarded as a good state of affairs to be at-tained, a broad and abstract reform goal,"° judgments of therightness or wrongness of actions within the existing, but imper-fect legal system may be subordinated to this abstract end goal.The desirable state of having well-functioning legal institutionsand practices determines what kinds of actions are right: goodrights activism, based upon that reading, is simply activism lead-ing to institutional reform ensuring a more perfect rule of law.With this logic, reformers will tend to reject as wrong actionsasserting individual legal rights when they would not further, orwould even hinder, the overall institutional reform goal, for in-stance because they would lead to a political backlash. The ruleof law goal thus becomes, under certain circumstances, a strate-gic consideration constraining rights activism. From a deonto-logical viewpoint, that could be a problem if it led to a situationwhere some individuals' rights were not protected, even thoughjustice (understood in a deontological way) required it. This isfurther discussed below.

9. See id. In contrast to consequentialists, deontologists believe that the rightnessof an act is determined independently of whether its consequences are good or not.

10. See generally RANDALL PEERENBOOM, CHINA'S LONG MARCH TowARD RULE OF

LAw (2002).


A strategic approach to rights activism and legal reform, forinstance, regarding the selection of cases to work on, is of coursenot limited to the Chinese context. It has been used by lawyersand rights activists in many legal systems, especially transitionaland post-authoritarian ones, and is associated with the ideas of"cause lawyering" and "impact litigation." These are ways of pro-moting, not just the rights of a litigant in a particular case, butalso changes in legal and political awareness, legal practice, andinstitutional reform.' 1 What distinguishes the Chinese situationfrom cases of cause lawyering in certain "post-authoritarian" 2

South American States and in the United States is that conse-quentialist constraints result especially from the authoritariannature of the Chinese political and legal system.

For instance, famous U.S. jurists have described legal prac-tice by reference to predictions of what judges will do.13 How-ever accurate this account may be with regard to a legal systemlike that of the United States, the predictions human rights activ-ists are concerned with in China are, at any rate, different. Asone of them pointed out, it would be unrealistic to think ofrights activism in China as primarily concerned with the actionsof courts. 4 In his view, this was because China was not a countryactually practicing of even verbally endorsing the separation ofpowers, and because the courts remained weak. Indeed, whilejudicial practice may flourish in some areas of law in China, cer-tain types of rights infringement have little chance of being adju-dicated, or of being adjudicated fairly, by courts, because courtshave no independent authority to adjudicate in those areas. Ex-amples which might be given by rights defenders themselves arethe constitutional rights to freedom of religion and freedom ofspeech, but also the now very frequent cases of illegal land requi-sitioning, which may affect peasants' individual legal rights of

11. See Stephen Meili, Cause Lawyers and Social Movements: A Comparative Perspectiveon Democratic Change in Argentina and Brazil, in CAUSE LAWYERING, POLITICAL COMMIT-

MENTS AND PROFESSIONAL RESPONSIBILITIES 487, 512 n.2 (Austin Sarat & Stuart Sche-ingold eds., 1998) (describing cause lawyering as directed at "progressive socialchange").

12. See id. at 496, 502, 507 (discussing the impact of military regimes).13. See Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REv. 457 (1897)

("The object of our study, then, is prediction, the prediction of the incidence of thepublic force through the instrumentality of the courts.").

14. Interview with Rights Defender #1, in Beijing, China (July 15, 2006) (on filewith author).

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use as well as rural collectives' legal rights of ownership, and le-gal rights to compensation. 5 Therefore, according to some, wei-quan, "rights-defending,"16 could instead be described as an ef-fort to "persuade" the government to protect the rights of citi-zens or to provide redress in cases of rights violation.1 7

On the other hand, assuming the inability of the Party-Stateeffectively to protect or defend (wei) rights, the term "weiquan"could be related to the special public responsibility of activiststaking on the task of "defending" others' rights themselves.1 8 Inthis latter sense, "defending" suggests a heightened degree ofconfrontation between the activists and lawyers working onrights issues, and the Party-State. Just because of this heighteneddegree of confrontation, rights activists in China sometimes facespecial questions of responsibility for the further consequencesof their actions. They have to decide about "taking risks." At acrucial moment in his campaign, lawyer Gao Zhisheng foundhimself faced with the reproach that the risks he was taking weretoo great. The risk was described not just as the risk that rule oflaw reform might fail, but also as a risk of people dying as a con-sequence of what he, Gao, was doing.

The problem of "taking risks" can be usefully discussed withreference to the idea of negative responsibility. Implicit in manyconsequentialist arguments is an assumption of "negative" re-sponsibility for the consequences of one's omissions, as well asone's acts. The attribution of negative responsibility is based onthe idea that we should prevent bad things from happening. 9

On this basis, there may also be responsibility for harm predict-

15. See Laodong he shehui baozhang bu: shidi nongmin meinian jiang xin zeng 300 wan[Ministry for Work and Social Insurance: Landless Peasants Number to Rise by Three MillisonPer Year], XINJINGBAO [BEIJING NEws],July 24, 2006, available at http://news.xinhuanet.com/politics/2006-07/24/content4870891.htm. Around forty million peasants are of-ficially supposed to have been affected by land requisitioning in the past ten years only.See id.

16. See supra note 2 and accompanying text (discussing the meaning of weiquan).17. It was impossible, this lawyer felt, to describe it as a way of challenging the

State, or the government (tiaozhan zhengfu). See supra note 14 and accompanying text(discussing rights activism in Chinese courts).


19. Peter Singer, Famine, Affluence, and Morality, I PHIL. & PUB. AFF. 229, 231(1972) ("If it is in our power to prevent something bad from happening, withoutthereby sacrificing anything of comparable moral importance, we ought, morally, to doit.").


ably done by others if we could have prevented it; for instance,harm done in a predictable response to what one has done one-self. To quote Bernard Williams, the idea is that "if I am everresponsible for anything, then I must be just as much responsi-ble for things that I allow or fail to prevent, as I am for thingsthat I myself, in the more everyday restricted sense, bringabout."2 0 To use an example not too far removed from the cur-rent Chinese Rights Defense Movement, and occasionally in-voked in discussions about it, one might hold some of the lead-ing June 1989 protesters on Tiananmen Square responsible fortheir own and others' deaths, because their actions triggeredbrutal repression by the Chinese army. Actual reproaches in thiscase may be factually very complex, but they at any rate make useof the idea of negative responsibility. 21

This kind of attribution of responsibility does not necessa-rily follow from adopting a consequentialist approach, becauseconsequentialism requires us to weigh consequences. Singer inhis consequentialist and utilitarian account of morality, for in-stance, while endorsing negative responsibility, also notes thatbad consequences may be outweighed by good consequences.22

One might argue, then, that even though many got killed, theTiananmen demonstrations were simply worth it, because thegood achieved-call it the good of public protest against oppres-sion-was overwhelmingly great. In that case, those who letother protesters continue when they could have stopped themcannot be responsible for their deaths on a consequentialist ac-count, oriented toward achieving good. Instead, those protestorsdid right. But, then again, it seems intuitively problematic toconsider others' lives somehow outweighed by the "good" ofpublic protest, 23 however well-grounded such protest may havebeen.

The core argument against this way of thinking is that it dis-torts one's judgment of moral obligation. In the example above

20. Bernard Williams, A Critique of Utilitarianism, in UTILITARIANISM FOR AND

AGAINST 77, 95 (1973).21. Discussions of this idea as an abstract problem are more clear-cut and allow for

a clear distinction between action and omission. Williams presents the example ofJim,who is given the choice of killing one person in ten to save the nine others, or lettingthose giving him this choice kill all ten. Id. at 98-99.

22. See Singer, supra note 19, at 240-41.23. John Rawls notes that a fatal flaw of utilitarianism is that it does not take seri-

ously the distinction between persons. SeeJOHN RAWt., A THEORY OFJUSTICE 26 (1971).

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it is the agents of the State, not the protesters, who violated aninjunction not to kill. As Bernard Williams puts it, the point of a"deontological restriction" on conduct is that you yourself shouldnot kill.2 4 On an alternative "deontological" account, law can beunderstood to track non-consequentialist restrictions and per-missions by means of imposing legal obligations and protectinglegal rights. This understanding of law is directed at a moralideal, rather than at an institutional reform goal. Regardingrights activism, moral, as well as legal responsibility for one's ac-tions might be considered limited by the fact that one had aright to protest against oppression, for instance. No one shouldreproach another for any consequences of her actions, as long asthat person had acted strictly "within" her rights.

There are problems with a deontological account of rightsand rights activism, too. One difficulty is that having a right isinconclusive of the question of how one should exercise it, onthe deontological view. Also, while it must be within one's moralrights to speak up for the rights of others as long as they them-selves consent, imposing a moral obligation on anyone to speakup for others may require further justification. Rights activistswill often point to a sense of moral duty to speak up against in-justice to explain why they expose themselves and others to therisks of retaliation. As the further discussion shows, GaoZhisheng, for one, clearly felt that to speak up was his moralduty.25 He explained this duty by saying, for instance, that "wemust prove that we are still human beings" in a situation inwhich, in his view, humanity had been outraged by the actions ofhis own political community and government. This perceivedduty at crucial times became so important that he could notshirk it even for the sake of keeping his own family out of harm'sway.

Institutional reform thinking is also often associated with"pragmatism." In the essay which created the label "pragma-tism" for a group of U.S. philosophers around the turn from thenineteenth to the twentieth century, William James explainedthat understood as an "attitude of orientation," pragmatism was"the attitude of looking away from first things, principles, "cate-

24. See WAilliams, supra note 20, at 99-100, 116-17.25. He felt he could not refuse to take on cases of Falungong persecution as a

lawyer, for instance.


gories," supposed necessities; and of looking towards last things,fruits, consequences, facts." Understood as a theory of truth, itmeant: "The true is the name of whatever proves itself to begood in the way of belief, and good, too, for definite, assignablereasons."

26

As a philosophical school, the pragmatists had great influ-ence on the way law is practiced in the United States, and taughtin U.S. law schools. Some Chinese scholars were also attractedby pragmatism, especially in China's Republican era in the 1920sand 1930s. Yu Xingzhong, 27 in his insightful discussion of "Chi-nese legal pragmatism," describes this attraction, as well as theperiod of sharp criticism of pragmatism as "bourgeois" by Chi-nese Communists, especially in the 1950s. 28 He views currentChinese legal pragmatism as different from Western legal prag-matism, in important respects, and characterizes the Chineseversion by "the resort to ad hoc measures, the separation of legaldoctrines from practice, the overemphasis of instrumental facetsof law, and the placement of policy before law."'29 For the pur-poses of the present discussion it is particularly important tonote the connection between the label "pragmatist" and DengXiaoping's economic and legal reforms. After the Chinese Cul-tural Revolution, since the 1980s, a certain slackening of adher-ence to communist doctrines was often characterized as "prag-matist." A commitment to "facts" and a skeptical attitude towardabstract principles could be associated, in particular, with theprecept of "seeking truth from facts" of the Deng Xiaoping era.

But what aspects of the institutional system to be reformed

26. William James, What Pragmatism Means, Lecture Two of Eight Dedicated tothe Memory of John Stuart Mill (1904), http://www.marxists.org/reference/subject/philosophy/works/us/james.htm (last visited Apr. 23, 2007).

27. Yu Xingzhong, Comment, Legal Pragmatism in the People's Republic of China, 3J.CHINESE L. 29 (1989).

28. Yu Xingzhong discusses Chinese legal pragmatism in juxtaposition with Sovietlaw doctrines, referring most notably to the work of Andrej Y. Vyshinski and with Ameri-can scholars such as Oliver Wendell Holmes and Roscoe Pound. Id. at 30-31. He saysthat:

Chinese Marxist legal scholars of the 1950s did not fully understand the theoryof legal pragmatism that they were criticizing. Their criticism was less an at-tempt to understand legal pragmatism than a general refutation of all thingsWestern and "bourgeois," including all institutions and ideas associated withNationalist thought.

Id. at 36.29. Id. at 30.

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should themselves count as "facts" from which truth was to besought, according to Deng? Once a pragmatic"0 perspective isadopted, existent legal and political institutions-in the Chinesecontext, we may think of Party Central, of the Party Disciplineand Inspection Committee, of the Central Party Propaganda De-partment, or of the National Letters and Visits Office, for in-stance-may become part of a pragmatic outlook on "facts." Toquote the Dean of Peking University Law School, Zhu Suli:3 t

Firstly, it is impossible not to see the practically ubiquitous,enormous influence of the Chinese Communist Party on theconstruction of the contemporary Chinese legal system. Thismeans that the Party must by all means be regarded as a con-stituent part of the current Chinese legal system. Thereforethe current state of Chinese legal practice with all its manyproblems ought not to be regarded as an abnormal statebrought about by theoretical or ideological mistakes, but in-stead primarily as a concrete, normal state of affairs. Sec-ondly, even though the current Chinese legal system is char-acterized by a number of weak points, problems and evenmistakes, and although all these are directly or indirectly re-lated to the Chinese Communist Party, we should certainlynot therefore fail to see the Chinese Communist Party's con-tribution to the legal system. In fact, there are some deficien-cies and mistakes which can hardly be distinguished fromthese contributions; they are merely two different aspects ofone phenomenon.( ... ) In a modern state, political parties will always be influ-encing legal practice; party politics is an inevitable factor inthe constitution and operation of a legal system. Therefore,given that the Chinese Communist Party is the ruling party, aruling party which to a certain extent continues to shoulderthe historic task of rebuilding China and constructing China,and given that it is a ubiquitous political force in contempo-rary China, it does not matter whether you oppose it; you can-not at any rate deny it. Even if one day it ceases to be theruling party, while it exists, it will still be exercising influence

30. In Chinese, the word shiyongxing can be used to translate "pragmatic" but also"practical." Shiyongzhuyi is generally used to translate "pragmatism" or "pragmatist." SeeTHE CONTEMPORARY CHINESE DIcrIONARY, CHINESE-ENGLISH EDITION (2002). Note thatYu Xingzhong, in his work on Chinese legal pragmatism, uses "pragmatist" and "prag-matic" interchangeably. See Yu Xingzhong, supra note 27.

31. Zhu Suli is often characterized as intellectually close to Richard Posner, someof whose works he translated.


on the legal system in some way.32

More briefly, Zhu Suli summarizes his position by the-perhapsslightly ironic-use of the propaganda slogan "No New ChinaWithout the Communist Party. 33

Such attitudes are different from, but related to the "conse-quentialist" form of argument considered above. Take a publicrejection of communist party leadership in China as an example.On a consequentialist understanding, one might desist fromopen and provocative criticism of party leadership on account ofits likely consequences. On a pragmatist understanding criticismmay appear straightforwardly wrong. It might not appear "goodin the way of belief," to use James's phrase, to be opposed to theChinese Communist Party, and even less to think that one oughtto make one's opposition public. To quote Zhu Suli again, "itdoes not matter whether you oppose it, you cannot at any rate deny it"(emphasis added). An attitude of critical opposition mightstrike one as pointless in view of the apparently unshakeable factthat the Chinese Communist Party is in power. It might amountto an "untruthful" denial of this fact, and appear bad in the wayof belief. Instead, one should face up to the fact that institu-tional reform is only going to be achieved with the Party, be-cause it is in power. Good institutional reform will therefore-for the time being, as Zhu Suli notes-be reform under Partyleadership. While this analysis may fail to capture what pragma-tism as a theory of truth aims at, it seems to be a form of analysisinfluential in contemporary Chinese legal circles, including thecircles of rights defenders discussed in this Article.

The most important kind of "pragmatic" attitude en-couraged by the Chinese Party-State to date could perhaps becharacterized as an attitude of "pragmatic silence" about certain

32. Zhu Suli, Zhongguo sifa zhong de zhengdang [The Political Party in Chinese LegalPractice] (on file with author). This paper was presented at a conference at the ChinaExploration and Research Society ("CERS") in Paris in December 2005. It is a reply toFrank Upham's review of Zhu Suli's book, SONG FA XIA XIANG, ZHONGGUO JICENGSIFAZHIDU YANJIU [SENDING LAW TO THE COUNTRYSIDE: RESEARCH ON CHINA'S BASIC-LEVELJUDICIAL SYSTEM] (2000), in Who Will Find the Defendant If He Stays With His Sheep?

Justice in Rural China, 114 YALE L.J. 1675 (2005). This reply was later published in ZHUSULI, FALU HE SHEHUI KEXUE [LAw AND SOCIAL SCIENCE] (2005), under the same title.

33. Mei you gongchandangjiu mei you xin Zhongguo. Id. See Guo Shengxin, Wei fangzizen nai ban ge shyi dejiuge zhi zhong [For One's Home-How to Suffer the Hardship of Half a

Century's Conflict], XINHUA, Aug. 3, 2004, available at http://news.xinhuanet.com/house/2004-08/03/content_ 700601.htm.

2007] 1221


matters of legal, moral, and political principle. In contrast tothe era of Mao Zedong, the Party itself now often treats its domi-nant role of leadership with rhetorical obfuscation. The P.R.C.Constitution is a good example for this, as it declares a commit-ment to Party leadership and to democratic centralism on theone hand, but subjection of all organizations and political par-ties to the law on the other. These self-contradictory commit-ments allow the reform-oriented to seek support for their rule oflaw ideals in the text of the Constitution, but precisely becausethey offer such a basis, they also invite those who rely on theConstitution for their arguments to accept Party leadership,which on principle they must reject if they want genuine rule oflaw. In that sense, the presence of such textual contradictionstends to silence genuine discussion. There are also concrete le-gal mechanisms, which prevent institutionalized (judicial) legalargument from gaining the normative depth which would be re-quired for their resolution. The infringement of constitutionalrights or human rights (now mentioned in the P.R.C. Constitu-tion) is not supposed to be raised in judicial processes.

Rights activists have to make choices about which silencesthey wish to break, and which imperfections in the system theywish to tackle. It takes courage to mention some of them. In2006, for instance, Professor He Weifang of Peking UniversityLaw School mentioned in a later publicized comment that theParty was not registered as an organization with legal personalityin China, that it could not be sued in court, and that this rancounter to the rule of law. 4 In doing so, albeit in a meetingwhich he thought was closed to the public, he was breaking apowerful unwritten command, a largely unspoken requirementto remain silent-to remain silent not with a view to "first things"or "principles," perhaps, but instead with a view to the conse-quences of speaking out on principle. In light of ProfessorWeifang's actions, it is appropriate to speak of the breaking of"pragmatic" silences here.

34. Professor He Weifang, Zhongguo hongguan jingji yu gaige zoushi zuotanhui[Macro-economy and Reform Trends], Speech in Xinglin Shanzhuang (Mar. 4, 2006),

available at http://www.peacehall.com/forum/gmlt/118.shtml; http://www.peacehall.com/forum/gmlt/119.shtml; http://www.peacehall.com/forum/gmlt/120.shtml. Apartial translation of Weifang's speech can be found at What He Weifang Said, EAs-r-

SOUTHWEsTNORTH, http://www.zonaeuropa.com/02212.htm (last visited Apr. 11,2006).


Gao Zhisheng, through his actions in 2004, broke certainpragmatic silences, which, until then, had been observed in legalpractice. Beginning with the example of just one legal case han-dled by Gao, the following section describes how, through expe-rience with the legal institutions, he came to be more vocal andexplicit on the persecution of Chinese citizens on account oftheir beliefs, after initial more "pragmatic" efforts to protect thelegal rights of one particular Falungong client.

III. LAWYER GAO ZHISHENG TRIES TO "PLAY BY THERULES" FOR A FALUNGONG PRACTITIONER

Gao Zhisheng was born in the early 1960s as one of sevenchildren of a rural family in the province of Shaanxi, an areawhere many people still live in so-called "yaodong caves," dwell-ings either dug into the hilly landscape, or constructed frommud (loess) bricks. He lost his father early.35 With difficulties,his mother enabled him to attend school up to junior highschool. Then he joined the People's Liberation Army, which al-lowed him to get further education. After working in a variety ofodd jobs, he eventually obtained a legal education and a lawyer'slicense by attending evening classes. He did not get a lot of aca-demic training, he did not attend an elite Chinese or Westerneducational institution, and he never went abroad.36 He beganpracticing law in the 1990s. At that time, the law held out manypromises, not least because of the intense propagation of theidea of "ruling the country in accordance with law."3 7 Gao wassuccessful in winning compensation for his clients in a numberof cases, which attracted media attention, and for a few yearsmade him one of China's famed new lawyers-a respected pub-

35. SeeJoseph Kahn, Rebel Lawyer Takes China's "Unwinnable" Cases, N.Y. TIMES, Dec.12, 2005.

36. See Cai Chu, Zhe yang de ren keyi zuo ren, BoxUN, May 2 2006, http://peacehall.com/news/gb/pubvp/2006/5/200605022317.shtml (last visited Feb. 2, 2007) (statingthat Jiao Guobiao, who participated in one of his adventurous investigative trips, callsGao half-illiterate).

37. Yifa zhi guo. This idea began to take shape with Deng Xiaoping's legal reformsfrom the late 1970s, and was especially encouraged by the 1989 Administrative Proce-dure Law. Jiang Zemin heightened the popularity of this phrase by using it in a lawlecture to senior party officials in 1996 with reference to Deng Xiaoping's reform poli-cies. For an account of this event, see Yi fa zhi guo, yi de zhi guo [Ruling the Country inAccordance With Law and Ruling the Country in Accordance With Virtue], XINHUA, Sept. 6,

2002, available at http://news.xinhuanet.com/newscenter/2002-09/06/content-552721.htm.

2007] 1223


lic figure, who in Gao Zhisheng's case was particularly active inrepresenting clients belonging to what in China are termed the"weak groups in society," such as peasants, migrant workers, thepoor. In Beijing, where he moved in 2000, Gao Zhisheng co-founded Shengzhi Law Firm. In 2001, through his performancein a public contest, he won the title of one of "China's ten mostexcellent lawyers nationwide," an honor awarded every year toten lawyers by the Chinese Ministry of Justice. 8

But from the late 1990s, Gao also began taking on govern-ment authorities as defendants, and defendants with strong linksto government institutions. He and other lawyers were involvedin seeking compensation from the owners of a coal mine," fromthe government bureau responsible for carrying out demolitionsin Beijing,4 ° and from a Guangdong government authority in aland seizure affecting thousands of peasants,41 as well as in a dis-pute with local government in Shaanxi,42 which tried to confis-cate land with oil wells run privately by rural residents. Likeother lawyers with public interest commitments, Gao Zhishenglearned to make use of public attention and the media, in manycases co-operating with other lawyers as well as with legal aca-demics. Even though there are many restrictions on reportingon such cases, a lot of information and comment does get outinto a public domain. One reason for this is that governmentauthorities at different levels have different interests in allowing

38. See Liu Xiaobo, Gao Zhisheng lushi de qishi [The Warning from Lawyer GaoZhisheng], BoxUN, Nov. 6, 2005, http://www.peacehall.com/news/gb/pubvp/2005/11/200511080255.shtml. For an official news website referring to Gao by this title, seeGuo Shengxin, Wei fangzi zen nai ban ge shiji de jiuge zhi zhong, XINHUA, Aug. 3, 2004,available at http://news.xinhuanet.com/house/2004-08/03/content_1700601.htm.

39. See Kahn, supra note 35.40. For example, Ye Guozhu's case. See Li Yongjing & Li Huiwen, Tian 'anmen zhizao

shiduan liang an fan bei pan xing [Criminals Sentenced in Two Cases of Creating Disturbanceson Tian'anmen], XINHUA, Nov. 28, 2003, available at http://news.xinhuanet.com/legal/2003-11/28/content_1203464.htm; see also Gao Zhisheng, Ye Guozhu de xingshishangsu zhuang [Ye Guozhu's Criminal Appeal], Nov. 21, 2004, http://www.epochtimes.com/gb/4/11/23/n726596.htm (last visited Apr. 23, 2007) (containing the state-ment of appeal written by Gao on behalf of Ye Guozhu).

41. Comparing Taishi and Shanwei, EASTSOUTHWESTNORTH, http://www.zonaeu-ropa.com/20060118_1.htm (last visited Dec. 28, 2007). This is a partial translation ofan interview with Guo Feixiong, who worked for Gao Zhisheng's law firm. Id.

42. See generally Howard W. French, Whose Oil Is It? Property Rights at Issue in China,N.Y. TIMES, July 18, 2005, at A3; Shanbei Min Ying Shiyou Qiye Huishou An, Li Heping'sDocuments, available at http://gaozhisheng.blog.edoors.com/rss.php?categoryId=1776.


or prohibiting such publications. A further consequence of thispublicity is that it raises the profile of the lawyers involved.

By taking on "unwinnable" cases against government, 43 Gaohad assumed a place among China's so called "rights defenselawyers" or weiquan lushi.4 4 As already mentioned, this term isused alongside "rights activist" and "civil rights lawyer," termsmore common in Western languages. "Rights-defending" is ofcourse the natural province of lawyering anyway. The 2001 Law-yers' Law states what the lawyer's task is, as "protecting the legalrights and interests of the client within the limits of his mandatein civil law," and as "providing material and views which demon-strate [are evidence of] the suspect's or defendant's innocenceor the lightness of his crime or his [deserving] mitigation ofpunishment, and protecting the legal rights and interests of thesuspect or defendant," in criminal matters.45 Chinese rights pro-tection lawyers identify themselves by their commitment to pro-tecting the rights of the weak in society, and to protecting theserights against the Party-State. In that sense, the term could alsobe translated as "human rights lawyers" or "civil rights lawyers."

The character "wei" conveys a sense both of "defending"and "protecting", the character "quan" at its most basic means"power," but it now often signifies "quanli," "rights." "Wei quan"can be understood as an abbreviation for weihu quanhi, whichtranslates into "defending rights" with greater precision than"wei quan" does. Occasionally it is also explained as "weihu fa-quan," "protecting legal rights." "Wei quan" is a common, albeitrecent, term in China and by itself not politically "sensitive";there are entire websites dedicated to promulgating knowledgeabout protecting one's legal rights.4 6 Websites providing infor-mation about the types of activism described in this Article, how-

43. See Kahn, supra note 35.44. For an excellent, systematic discussion of contemporary weiquan, that provides

a typology of Chinese rights defenders, in the context of cause lawyering, and arguesthat a beneficial gradual change of the system as a consequence of weiquan lawyeringcan, on the whole, be expected, see Fu Hualing and Richard Cullen, Weiquan (RightsProtection) Lawyering in an Authoritarian State, draft on file with author.

45. Lushi Fa di 27, di 28 tiao [Lawyer's Law art. 27, 28] (promulgated by the Stand-ing Comm. Nat'l People's Cong., Dec. 29, 2001, effective 2002) (P.R.C.), available athttp://www.cecc.gov/pages/newLaws/lawyersLawENG.php (last visited Apr. 21, 2007).

46. See, e.g., Zhongguo weiquan wang [Chinese Rights Defense Net], http://www.wq-investigation.com (last visited Feb. 2, 2007); Weiquan 365 [Rights-defending 365],http://www.weiquan365.com/first.asp (last visited Feb. 2, 2007).

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ever, are blocked out,4 7 although illegal software is being used bysome to break through some of these internet blocks.4 8 Conse-quently, although this Article uses the term "Rights DefenseMovement" as used by the rights defenders discussed here, thisterm may occasion puzzlement among ordinary Chinese people,including legal professionals.

The movement gathered momentum in the year 2003,which was by many perceived as a year of new political opportu-nity. There had been a change in the highest leadership (fromJiang Zemin to Hu Jintao and Wen Jiabao) and there was someexpectation that the new leadership would prove more commit-ted to rule of law than the previous one. The outbreak of SevereAcute Respiratory Syndrome led to a certain opening up of newsreporting and to calls for respecting citizens' "right to be in-formed" about situations such as SARS. Most importantly for le-gal reform, the Sun Zhigang case, discussed briefly below, raisedthe possibility that China might in time develop its own forms ofconstitutional review to address the problem of legislation violat-ing basic rights. As Gao explained later, he was one amongmany legal professionals believing that there would be a slowand incremental development toward rule of law in China. Hewas a public interest lawyer committed to institutional reform,and convinced that the system would be able to reform itself.49

But only the following year, in a lecture delivered on November3, 2004 in Beijing's University of Industry and Commerce, Gaowas describing the legal profession as being in crisis, and sayingthat this crisis, while it was "tolerated," or "looked at but not

47. See, e.g., Gong min weiquan wang [Civil Rights Defender Net], http://www.gmwq.org/web/index.asp (last visited Feb. 2, 2007); Gongmeng [Open ConstitutionInitiative], http://www.gongmeng.cn/sub_list3/phpzyjmid=78 (last visited Feb. 2,2007); Qian Min Wan [Signature Campaigns] http://www.qian-ming.net/gb/ (last vis-ited Feb. 2, 2007); Boxun, http://peacehall.com (last visited Feb. 2, 2007); and ZiyouYazhou diantai [Radio Free Asia], http://www.rfa.org/mandarin (last visited Feb. 2,2007). In the context of the present Article, Falungong news websites such as Dajiyuan,http://www.dajiyuan.com (last visited Feb. 2, 2007), were also used, but the frequentunreliability of these websites and their obvious biases made their use a less eligibleoption, when there were other news sources.

48. One apparently popular one is called Ziyou men [Freegate]. It is frequentlyupdated, and updates can be downloaded from a Falungong website accessible throughthe use of Freegate. See Jon Newton, Google and the Chinese Government, TECHNEW-

sWoRLD, Sept. 9, 2004, available at http://www.technewsworld.com/story/36818.html.49. Interview with Rights Defender #2, supra note 18.


seen" in society, amount[ed] to "a crisis of society as a whole."5"He was about to embark on a frontal challenge to the system hewas describing. In the winter of 2004, Gao took on the case of aFalungong practitioner named Huang Wei who was protestinghis administrative detention.

Falungong, or Falun Dafa, is a group-often called a cult orsect, and in Chinese official language referred to as a "crookedteaching"5t-of people practicing meditation and qigong. Theyadhere to beliefs formulated chiefly by Li Hongzhi, the masterteacher and founder of Falungong. It has been observed thatthis group grew out of the revival of meditation practices after1976 in the P.R.C.,52 and the closeness of Falungong practicesand beliefs to the Chinese Buddhist and other religious tradi-tions is a matter of some debate. 3 Falungong operates numer-ous websites, including some propagating its practices and be-liefs. The three cardinal virtues to which adherents ofFalungong are committed are truthfulness, benevolence, andforbearance. Many of the writings of Li Hongzhi emphasize thetechnical aspects of practicing qigong, and adopt a language of"scientific"54 and utility-optimizing individualism.55 Claims in-clude that meditation may allow practitioners to levitate, and afairly strained explanation is provided for why none of themhave actually ever been seen to take off the ground.56 The au-

50. Gao Zhisheng, Lushi de shiming [The Lawyer's Mission], Lecture Delivered atthe Beijing University of Industry and Commerce (Nov. 3, 2004), available at http://www.epochtimes.com/gb/4/11/3/n708306.htm.

51. Xiejiao.52. See generally Barend Ter Haar, Falungong: Evaluation and Further References,

http://website.leidenuniv.nl/-haarbjter/falun.htm (last visited Feb. 1, 2007).53. See id.54. See Ter Haar, supra note 52 (emphasizing the importance of the Falungong's

claims to be grounded in science).55. To quote Li Hongzhi on mediation, for instance:

When a person does the exercises in that state his body is being evolved to itsfullest extent. It's the best state. So that's why we have you enter into stillnessin that kind of state. But don't go to sleep or get all foggy-headed. Somebodyelse might practice and get the good things then.

Li Hongzhi, The Eighth Talk, FALUNDA1A.ORG, http://www.falundafa.org/book/eng/zfl_new_8.html#6 (last visited Feb. 2, 2007).

56. For instance:Then why aren't we seeing all those people taking off, right? "I don't see themflying off!" The way of things in the ordinary world can't just be upset-youcan't just go and damage the form of the ordinary world or change it. Howcould having everyone fly in the air work? Would that be a world of ordinarypeople? That's the main reason.

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thor joins others57 in holding that its practices and beliefs char-acterize Falungong as a religious group.

At its main website, it is also asserted that "Falun Dafa isapolitical, informal, and completely free of charge, obligation,and membership."" But, at least the claim regarding the apoliti-cal nature of Falun Dafa seems untenable at the time of writing.This is partly due to the repression of Falungong, especiallysince 1999, when a silent mass sit-in in front of the central gov-ernment's quarters alerted the central Chinese leadership to thedegree of influence Falungong had over its adherents. This pro-cess has been described, for instance by journalists and humanrights groups, in various publications. 59 Repression has includeda public announcement by the National People's Congress(avoiding the mention of Falungong by name but clearly refer-ring to it nevertheless),6 ° propaganda against Falungong, andsystematic persecution of individual practitioners who refused torenounce it. Such persecution has, according to the reports justmentioned, included illegal detention, severe forms of systemati-cally inflicted torture, and the confinement in closed psychiatricinstitutions.61 Falungong can now be considered one of the driv-ing forces of propaganda and information directed against theParty, especially from abroad. One of its major campaigns hasthe sole purpose of encouraging Party members to quit.62 In theview of one of the rights defenders consulted for this Article, thechallenge from Falungong has, in recent time, been waning,

Id.57. See MERLE GOLDMAN, FROM COMRADE TO CITIZEN: THE STRUGGLE FOR POUTI-

CAL RIGHTS IN CHINA 219 (2005). There, the author strives (unsuccessfully) to portrayFalungong as apolitical. Id.

58. Falun Dafa, http://www.falundafa.org/eng/overview.htm (last visited Apr. 10,2007).

59. See, e.g., IAN JOHNSON, WILD GRASS: THREE STORIES OF CHANGE IN MODERNCHINA (2004); HUMAN RIGHTS WATCH, DANGEROUS MEDITATION: CHINA'S CAMPAIGN

AGAINST FALUNGONG (2002), available at http://hrw.org/reports/2002/china/China0102.htm; Ter Haar, supra note 52.

60. Quanguo renmin daibiao dahui "guanyu quid xiejiao zuzhi, fangan he chengzhixiejiao huodong dejueding" [1NPC Standing Committee Decision on Banning Heretical Sects, andGuarding Against and Punishing Heretical Sect Activities], XINHUA, Oct. 30, 1999, http://news.xinhuaneLcom/legal/2003-01/21/content_699651.htm (last visited Feb. 2, 2007).

61. See Robin Munro, The Ankang-China's Special Psychiatric Hospitals, IJ. COMP. L.41 (2006) (discussing the issue of psychiatric confinement).

62. See generally DA JIYUAN [EPOCH TIMES], http://tuidang.epochtimes.com (lastvisited Apr. 10, 2007). The Epoch Times is a newspaper run by Falungong and has dedi-cated a section of its website to this effort. Id.

2007] ASKING THE TIGER FOR HIS SKIN 1229

while Christian groups have increased in their importance.63

This perception seems strong especially, on the part of thosewho are themselves Christians and committed to constitutional-ism, and who place great value on a connection between consti-tutionalism and Christian faith.64 Gao Zhisheng, when he tookup the cases of a Falungong practitioner affected by illegal de-tention, did so expressly not in order to promote Falungong be-liefs or practices. He was attracted by people with religious faithand emphasized the importance of the legal right to hold relig-ious beliefs as such and of the right to freedom of mind; but hewas not attracted by Falungong itself, and remains cautiouslynon-committal regarding Falungong's various tenets and objec-tives. 6

' He became a Protestant Christian, joining one of Beij-ing's house churches, in late 2005, as several of his fellow rightsdefenders did.66 He had previously contributed to the legal ef-fort for persecuted house church Christians. 67 Partly as a conse-quence of his involvement in cases of Christian persecution, hebegan receiving many letters by Falungong adherents asking himto take on their cases, from 2003.68 At that time, Falungong ad-herents, too, may have believed in the possibility of benignchange, such as legal redress for abuses, or perhaps even an offi-


64. For instance, Fan Yafeng, as well as Wang Yi. See WANG YI, XIANZHENG ZHUYI:

GUANNIAN YU ZHIDU DE ZHUANLIE [CONSTITUTIONALISM: CONCEPT AND SYSTEMIC TRANS-

FORMATION] 150 (2006) (Cong shengyue dao xianyue [From being bound by God to beingbound by a Constitution.]).

65. Interview with Rights Defender #2, supra note 18. This rights defender saidthat the CCP could afford to call Falungong an "evil sect" (xiejiao) whereas it could notdo so with regard to Christians.

66. For instance, Li Heping, Fan Yafeng.67. See Interview with Rights Defender #2, supra note 18. For instance, when a

Protestant priest named Cai Zhuohua was tried for illegally distributing Bibles in 2005,Gao Zhisheng and other rights defenders were able to improve his procedural protec-tions, to obtain punishment considerably lower than the ten years that would have beenpossible, and to ensure better prison conditions for him while he served his sentence.See Conversations with Rights Defender #2, in Beijing, China (June 16, 2006 & July 27,2006). For "edited versions" of the criminal defense statements submitted to the courtand copious further material on the case, see Cai Zhuohua an bianhu tuan zhengli CaiZhuhua [Cai Zhuohua's Criminal Defense Team], Cai Zhuohua anjishi (yi), (er) [Casenotes (1 & 2)], INDEPENDENT CHINESE PEN CENTER, http://www.penchinese.com/wipc/

july/79-czh.htm (last visited Feb. 2, 2007); see also Open Constitution Initiative, http://www.gongmeng.cn/en/subjlist 3.php?zyjmid=21; accord Philip Pan, Protestant Pastor inChina Convicted for Printing, Distributing Bibles, WASH. POST, Nov. 9, 2005, at A22.

68. See Interview with Rights Defender #2, supra note 18.


cial "rehabilitation" of their group.6 9

Huang Wei had been accused of distributing material prop-agating Falungong in his native Shijiazhuang, in Hebei province,and had consequently been sentenced to "Re-educationThrough Labor" (labor camp). It is interesting to study the com-plaint Gao Zhisheng drafted in Huang Wei's case, which wasmade available on the internet, with a view not only to what itsays but also to what it is silent about. In a first step, considerwhat it says. The cause of the administrative complaint was "fail-ure to act" on the part of Shijiazhuang City government, afterHuang had been committed to Re-education Through Labor bythe Shijiazhuang Public Security (police) Department's Commit-tee for Re-education Through Labor, and sought to initiate ad-ministrative "reconsideration" of this decision.7 ° The complaintlists a number of legal reasons why the measure imposed onHuang was illegal. Firstly, it argues that the factual finding of"having participated in illegal Falungong activities" was an insuf-ficient ground for detaining Huang, who had already been sub-jected to the same kind of detention in November 1999, on thesame grounds. The administrative decision is quoted:

Decision number 152 stated the following reason for impos-ing three years of administrative detention on the plaintiff:"The trial process has shown that on 13 April 2004 HuangWei was apprehended for carrying out illegal Falungong ac-tivities, and a search of his place of abode brought up about43 copies of Falungong slogans (written on scrolls) whose sizewas 3 by 15 centimeters, as well as 16 tapes and a copy of LiHongzhi's Touring North America To Teach the Fa, one of Achiev-ing Self-Satisfaction Through Practicing Falungong and otherFalungong material." So these are all the "facts" on the basisof which a citizen is sent to prison for three years! 71

69. See id.70. Huang Wei de qisu zhuang [Huang Wei's Complaint] [hereinafter Huang

Wei's Complaint], Dec. 21, 2004, available at http://www.epochtimes.com/gb/4/12/21n755685.htm.

71. Id. The complaint also states that:In the administrative decision to impose Re-education Through Labor on theplaintiff there is not one [mention of] illegal conduct; instead, the reasonstated for imposing three years of administrative detention is that "he refusedto be reformed (ju bu zhuanhua)." The law constrains conduct; but whetherone is "reformed" or not is a matter of one's mental attitude. The plaintiff wasgoing about his business in society entirely in respect of the law, he was payinghis taxes according to the regulations, he was not endangering anyone.


The difficulty with this last observation is that there are legal (ad-ministrative) rules, even though they may not be consistent withother, higher-ranking legal and constitutional norms, which pro-hibit and penalize even the possession of Falungong materials.Although the complaint argued that on the particular day he wasapprehended, Huang Wei had been doing nothing more objec-tionable than taking his daughter to school, it does not contendthat the material found by the police was not Huang Wei's, al-though it alleges that no procedural requirements were ob-served when the police entered Huang Wei's home to obtainthem.7 2 The complaint had been made on the basis of an unsuc-cessful application for administrative reconsideration, whichfailed, but which (as is explained further below) might theoreti-cally have led to "reconsideration" also of the adequacy of thelegal rules penalizing "possession." When the administrative re-consideration authority did nothing, Huang, represented by GaoZhisheng, tried to sue.

Huang also complained that at the time of his arrest and fordays afterward, his jailers refused to identify themselves or to tellthem for which administrative department they worked. Moststrikingly, he complained that the protocol of his "interrogation"in May 2004 was falsified before Huang Wei's eyes by an officer,who faked his, Huang Wei's signature. 73 Various procedural re-quirements regarding administrative punishment according tothe Administrative Punishment Law were not adhered to.74 And,according to Huang Wei, in three years, he had never beengranted a hearing as required for the imposition of Re-Educa-tion Through Labor.75

The written complaint winds up by pointing out the uncon-stitutionality of the legal regulations on which the system of Re-education Through Labor is built.7 6 In submitting this com-

Id. § 11.6.72. See id. § 11.9.73. See id. §§ 11.1, 11.2. The complaint also says that Huang tried unsuccessfully to

get the officers to tell him why he was being apprehended. The answer, according tothe complaint cited here, was, "so how come that of among so many people who havenot been arrested, only you have been arrested? Just think about it." Id.

74. Huang Wei's complaint cites Articles 2, 37, 31, 32, and 41 of the Constitution.Id.

75. Id. § 11.7.76. It should be noted that the complaint is vague on which regulations are used as

such a basis.

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plaint, Gao was tracing arguments which had already been putforth by other Chinese rights activists, as well as by constitutionalscholars. The general argument is based on Article 37 of theP.R.C. Constitution, which says that no citizen may be arrestedexcept with the approval or by decision of a People's Procuracyor by decision of a People's Court.v Neither courts nor People'sProcurators are involved in the decision to impose Re-educationthrough Labor, made exclusively by a committee internal to thepolice, yet it can be imposed for up to four years. Further legis-lation clarifies the preconditions for the legal restriction of theconstitutional right to personal freedom as guaranteed in Article37 of the Constitution. According to the 2000 Legislation Law(Article 9 in conjunction with Article 8) and the Law on Admin-istrative Punishment (Article 9), only a "statute"78 created by theNational People's Congress can restrict the right to personalfreedom. Yet the legal "basis" for Re-education through Laborconsists in a number of administrative regulations and adminis-trative decisions; it is therefore an "unconstitutional" basis andin that sense, as discussed further below, it cannot legally justifydetention under Re-education Through Labor.

The points made in the complaint, as summarized above,are all important and deserved to be made. The aim pursued atthe time by Gao Zhisheng and his co-workers was to expose ille-gality of the persecution of Falungong, by use of a detention sys-tem that appeared independently flawed. 7' But there are tworelated problems with the complaint, which deserve particularnotice. One is that there is currently no functional mechanismto subject laws, legal regulations and a large number of otherofficial decisions to legal scrutiny in the context of an adjudica-tive process. There are, moreover, principles of law and govern-ance, which are opposed to judicial or constitutional review.

77. The Constitution states:

The freedom of the person of citizens of the People's Republic of China is

inviolable. No citizen may be arrested except with the approval or by decision

of a People's Procuracy or by decision of a People's Court, and arrests must be

made by a public security organ. Unlawful detention or deprivation or restric-tion of citizens' freedom of the person by other means is prohibited, and un-

lawful search of the person of citizens is prohibited.

XkN FA art. 37 (2004) (P.R.C.).78. Falu. This expression is commonly translated as "law" but for the sake of clarity

the translation "statute" has been chosen here.



This is the subject of the following section, which by explainingin what ways Huang Wei's case was hopeless as a case of potentiallitigation, throws some light on the institutional limits of rightsprotection and constitutionalism in an environment of frag-mented law. The other problem concerns what the complaint inHuang Wei's case did not mention, and is discussed later.

IV. CHALLENGING THE LESSONS OF INSTITUTIONALREFORM PRA GMA TISM

The most notable case in the movement toward constitu-tional review so far was the abolition of a detention system forvagrants, triggered by the so-called Sun Zhigang incident in2003.80 It presents an interesting foil for Huang Wei's case,taken up by Gao Zhisheng one year later. Sun Zhigang, whosecase was widely discussed in China, was a victim of wrongful de-tention as a vagrant; during detention, he was beaten to death.This case was widely reported on, and the detention system for"vagrants" came under attack from academics and the public."1

It was ultimately repealed by the authority which had created it,the State Council.

Importantly, Sun had been an educated university graduate,while victims of the detention system were usually "peasant" mi-grant workers in low-qualified jobs. To go by the images of civicsuccess fostered in Chinese society at present, he was an in-tensely sympathetic figure.8 2 If "picking" Sun Zhigang was there-fore a conscious strategy on the part of the many public intellec-tuals and lawyers trying to support this case, the strategy worked:the system of detention was abolished. It was perhaps the onlycase of a successful utilization of the mechanism for submitting"constitutionality review suggestion letters" to the legislative

80. See Hand, supra note 2; see also Eva Pils, Citizens? The Legal and Political Status ofPeasants and Peasant Migrant Workers in China 4-5 (2005), http://uschinalawsociety.org/symposium/papers/postconference/pdf/Eva.Pils.eng.pdf (last visited Apr. 23, 2007);Helen Hsiu, Remaking the Rural-Urban Divide in Post-Reform South China: Modernity andMarginality 7-8 (2005), http://uschinalawsociety.org/symposium/papers/postconference/pdf/Helen.Siu.eng.pdf (last visited Apr. 23, 2007).

81. He Weifang and others sent an open letter to the National People's Congress,in which they reaffirmed this view first taken by Xu Zhiyong and Teng Biao in theirsuggestion letter. See Letter from He Weifang, Shen Kui, Xiao Han, He Haibo, andSheng Hong, to the Standing Comm. Nat'l People's Cong. (May 22, 2003), available athttp://www.legaltheory.com.cn/info.asp?id=3891.

82. See Hand, supra note 2.

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body of the Chinese central state, the NPC Standing Committee,in accordance with Article 90 of the Legislation Law. It was onlya partial success: for while the mentioned procedure for sug-gesting constitutionality review was used, and while the regula-tion targeted was repealed, there was no clear evidence that onehappened as a consequence of the other, and the NPC StandingCommittee never issued a public opinion on the unconstitution-ality of the regulation. The celebration of the case as a success,when the regulation for detaining vagrants was repealed, wastherefore almost a little misleading. It was a case, however,which established in the public mind the idea that a law mightbe bad even on the lawgiver's own terms, and in that sense repre-sented an important breakthrough.

But only a few weeks later, a very similar challenge to an-other set of regulations for administrative detention of an evenmore invasive kind failed. Above, it was briefly stated why theadministrative detention system known as Re-educationThrough Labor was unconstitutional. A brief comparison ofthese arguments with those used after the Sun Zhigang incidentdemonstrates that they were very similar, involving Article 37 ofthe Constitution, Article 9 of the Legislation Law and Article 9,in conjunction with Article 8 of the Administrative PunishmentLaw.83 Indeed, after the "success" of the Sun Zhigang incident,constitutional concerns relating to Re-education Through Laborwere promptly put forth in a suggestion letter for constitutionalreview of a set of three regulations and decisions on Re-educa-tion Through Labor.84 Although this suggestion letter was atone point published online, further publications on this topicwere quickly suppressed. The NPC Standing Committee did notreply; nor was the regulation repealed. The issue died down, at

83. In his complaint, Gao cited Article 10 of the Administrative Punishment law.See Huang Wei's Complaint, supra note 70, § 3. Article 10 of the Administrative Punish-ment Law was also cited by Hu Xingdou in his suggestion letter for constitutionalityreview of the Re-education Through Labor System. Letter from Hu Xingdou, Professor,Beijing University of Technology, to Standing Comm. Nat'l People's Cong. (Nov. 3,2003), available at http://www.gmwq.org/web/news-view.asp?newsid=100.

84. See Hu Xingdou, supra note 83. This suggestion letter lists three regulations,namely Guanyu Laodong jiaoyang wenti de jueding [The State Council Regulation of 3August 1957], Guanyu laodongjiaoyang buchong guiding [The State Council Regulation of29 November 1979], and Laodongfiaoyang shixing banfa [The State Council of 21 Janu-ary 1982].


least as a matter of public discussion in mainland China."5

The reason why the letter was suppressed is widely consid-ered to be that Re-education Through Labor was not, at thattime, a mechanism which the Party wanted to dispense with,8 6

because it represented a mechanism entirely in the hands of thepowerful police under the Ministry of Public Security, createdState (or police) revenue, and it was considered an importantmechanism for political and social control.87 From the perspec-tive of wanting to achieve institutional success, this made Re-edu-cation Through Labor an ineligible target for public-mindedconstitutionalists. The pragmatist lesson from this experiencewas that, if one wished to push for legal reform through theavailable institutional mechanisms, one had to accept some ofthe limitations set by them in order to strengthen such institu-tions and mechanisms.

The fact that limitations can be so easily set by the NPCStanding Committee regarding what issues it wishes to address isa result of how the review system has been designed in accor-dance with Article 90 of the 2000 Legislation Law. The proce-dure is, generally speaking, not public (even though citizens maybe able publicly to write about it); the institution addressed isunder no explicit legal obligation to reply; and if the concernedworking group of the NPC Standing Committee believes that aparticular item of legislation should be repealed, it will seek tocontact the authority which produced the regulation and ask itto change it, rather than striking it down itself.88 All these as-pects of the mechanism for constitutionality review make it ob-scure and uncertain, and give the NPC Standing Committee aswell as affected government authorities wide room for negotia-tion, delay, or downright rejection of any "suggestion" they mayhave received.

By the end of 2004, Gao Zhisheng was certainly aware ofthese difficulties. Before he embarked on helping Huang Wei,

85. See, e.g., Letter from Gao Zhisheng, Sun Wenguang, Wang Yi, YuJie, Shi Ruop-ing, Li Changyu, Zhao Dagong, Liu Di, Yang Zaixin & Mu Zhuanheng, to StandingComm. Nat'l People's Cong. (March 12, 2006), available at http://www.qian-ming.net/gb/default.aspx?dir=scp&cid=74 (representing an open letter of this kind, requestingunconstitutionality review of the Re-education Through Labor System).

86. See Hand, supra note 2, at 173-74 (discussing this political background).87. See id. at 184.88. See WANG ZHENMIN, ZHONGGUP WEIXIAN SHENCHA ZHIDU [THE CHINESE SYSTEM

OF CONSTITUTIONALITY REVIEW] (2004) (discussing this process).

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he had himself tried to use the mechanism of Article 90 of theLegislation Law three times, suggesting the review of the Regula-tion on Managing Housing Demolition and Relocation in UrbanAreas, and of related regulations and Supreme People's CourtJudicial Interpretations. In all three instances, he writes, "thesethree requests had the same result-no reply whatsoever." 9 Itmay have seemed better, then, to raise the subject of unconstitu-tionality directly in the context of concrete administrative litiga-tion, rather than in a suggestion letter for constitutional reviewby appeal to the NPC Standing Committee. In his administrativecomplaint drafted for Huang Wei, intended for the ordinarycourt system (which handles administrative litigation), Gao usedarguments similar to the arguments against the constitutionalityof the Re-education Through Labor System, which had beenused earlier on in suggestion letters for Constitutional Review ofthis system.

Yet, in technical terms, the mechanism of administrative liti-gation before ordinary courts9" is an even less acceptable way toprotest the unconstitutionality of administrative regulations.This is due to a doctrine in Chinese administrative litigation law,which is intimately connected with the system of legislation inChina. According to Article 12, § 2 of the Administrative Litiga-tion Law, only challenges to so-called "concrete" administrativeacts are allowed before the courts. So-called "abstract" adminis-trative acts, by contrast, are excluded from administrative litiga-tion and consequently from judicial scrutiny. The courts mustnot accept litigation applications "directed at decisions or orders'of generally binding force' by administrative bodies."91 Admin-istrative regulations can therefore not themselves be the subject

89. Letter from Gao Zhisheng, to Wu Bangguo and the Standing Comm. Nat'lPeople's Cong., (Dec. 31, 2004), available at http://www.dajiyuan.com/gb/4/12/30/n764897.htm.

90. Despite the discussion in the following it should be noted that, since its formalintroduction by legislation in 1989, administrative litigation was in some ways a success.On the early development of administrative litigation, see Pei Minxin, Citizens vs Manda-rins: Administrative Litigation in China, 152 CHINA Q. 832 (1997).

91. Guanyu zhixing xingzheng susong fa ruogan wenti dejiesh [Supreme People'sCourt'sJudicial Interpretation "On questions relating to the application of the adminis-trative litigation law" art. 3] (promulgated by the Sup. People's Ct., Nov. 24, 1999, effec-tive March 10, 2000) (P.R.C.), reprinted in CHINALAWINFO (last visited Mar. 23, 2006); seeLiu Xin, Jianlun chouxiang xingwei de tezheng [A Short Discussion of Peculiarities of Abstract

Administrative Acts], LEGALDAILY, http://www.legaldaily.com.cn/gb/content/2001-07/29/content_21642.htm (Feb. 2, 2007). Party policies, unless issued jointly with an ad-


of an administrative litigation challenge; nor can laws made bythe National People's Congress or its Standing Committee.Compared to NPC Laws, administrative regulations may in somecases be subjected to legal (albeit not judicial) scrutiny by theadministration itself. This can occur in "administrative reconsid-eration" of a concrete abstract administrative act, according toArticle 7 of the Administrative Reconsideration Law.9 2 A form ofreview within the hierarchy of the administration, such "adminis-trative reconsideration" can, and in some cases must, precedeadministrative litigation. But in Huang Wei's case a reconsidera-tion application had already been submitted without success.

On a narrow interpretation, which is often preferred by thecourts, no type of law (statute) or administrative regulation canbe expressly held inconsistent with other legislation or with theConstitution, by any Chinese court, even if judicial scrutiny isonly incidental to the judicial review of a concrete administrativeact based on more general administrative norms. This interpreta-tion is in dispute," but in practice, it can be convenient forcourts to resort to it to avoid handling unwelcome litigation. Sofar as Gao was complaining that the Re-education for Labor sys-tem was not in accordance with the Constitution and other laws,or that the rules against Falungong practitioners were unconsti-tutional, his complaint was very unlikely to be even consideredby a court.

From the standpoint of democratic centralism in a system ofone-party leadership, there is no clear political or moral require-ment for laws to be challengeable in court on the grounds ofinconsistency with the Constitution or other legislation.9 4 The

ministrative authority, cannot be the basis of a legal decision, but neither is there amechanism for challenging them in litigation.

92. Xingzheng fu yi fa di 7 tiao [Administrative Reconsideration Law art. 7](promulgated by the Standing Comm. Nat'l People's Cong., Apr. 29, 1999, effectiveOct. 1, 1999) (P.R.C.), available at http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=27830. Note that Article 53 of the Administrative Litigation Law re-quires that when courts come across a "norm" (guiding) that is "not consistent" withother "administrative" legislation, they have to submit this question to the State Councilfor decision. Li fa fa di 53 tiao [Administrative Litigation Law art. 53] (promulgated bythe Standing Comm. Nat'l People's Cong., Apr. 4, 1989, effective Oct. 1, 1990) (P.R.C.),available at http://www.cecc.gov/pages/newLaws/adminLitigationENG.php.

93. See infra note 107, at 55 (citing toJiang Ming'an).94. Stephen C. Angle quotes a classic Lenin-derived formulation by Wang Ming:The minority obeys the majority; party members have complete freedom todiscuss and criticize before any issue is decided; after it is decided, everyone

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principle of democratic centralism is affirmed in Article 3 of theConstitution.95 So far as legislation is concerned, this principlerequires participation from the public, but also assumes thatviews submitted from "below" will be utilized in such a manneras decision-makers "above" see fit. Insofar as democratic central-ism requires that once a decision has been made, it is to beobeyed, it is therefore difficult to address the problem of incon-sistency among different rules, without challenging the principleof democratic centralism.

This principle is greatly mitigated by the recognition of theneed to allow public remonstrations when mistakes or injusticehave occurred,9 6 for instance, through the petitioning system.But these are different from mechanisms for the challenge oflegal rules as a matter of constitutional principle and strict legaland political obligation. As an expression of democratic central-ism and with a view to the way the Chinese legislation system wasdesigned, a narrow interpretation of the abovementioned ruleabout "abstract administrative acts" therefore makes some sense.

But with a view to constitutionalism, and especially to thecommitment to protect constitutional rights, it is nevertheless adevastating doctrine. The complaint that a certain legal rule isunconstitutional or otherwise inconsistent with higher-rankinglegal rules, prima facie amounts to the uncompromising state-ment that such a rule must be invalidated. Article 5 of the P.R.C.Constitution9 7 does state that all State action is bound by the

must implement the decision of the organization no matter what their view;the subordinate must implement the resolutions and directives of the supe-rior, they may present their views to the superior, but they must still imple-ment these resolutions and directives before they are changed by the superior.

Stephen C. Angle, Decent Democratic Centralism, 33 POL. THEORY 518, 525 (2005). Thisprinciple was modified by the idea of the "mass-line," formulated by Mao Zedong. Seeid. at 526.

95. XIAN FA art. 3 (1982) (P.R.C.) ("The state organs of the People's Republic ofChina apply the principle of democratic centralism.").

96. See id. art. 41.97. Id. art. 5. Article 5 states that:The state upholds the uniformity and dignity of the socialist legal system. Nolaws or administrative or local rules and regulations may contravene the Con-stitution. All state organs, the armed forces, all political parties and publicorganizations and all enterprises and institutions must abide by the Constitu-tion and the law. All acts in violation of the Constitution or the law must beinvestigated. No organization or individual is privileged to be beyond theConstitution or the law.


Constitution. However, it continues to say that "all actions inviolation of the Constitution or the law must be "investigated,"not "invalidated." Other legislation, in particular the 2000 Legis-lation Law, suggests that regulations do become invalid whenhigher-ranking law in the same matter is produced and therewould be a contradiction;9" but this does not amount to a proce-dure for invalidation by an independent authority. Indeed, Arti-cle 64 provides that the authority which originally produced thelower-ranking regulation now in contravention of higher-rank-ing legislation should repeal it.99

The only model, therefore, on which the review of rules canwork in democratic centralism is one in which rules are invali-dated by an act of fiat, a new political decision by the norm-giver. 00 It can be argued that this is the reason why, accordingto Article 90 of the Legislation Law, citizens are only allowed tomake "suggestions" for the review of rules.101 At least, this ar-rangement is entirely consistent with the logic of democraticcentralism, whereas it is inconsistent with the logic of rights, andof norm hierarchy in a constitutional governance structure.

The doctrine excluding "abstract administrative acts" fromjudicial scrutiny has moreover been applied extensively in courtpractice, for reasons again related to the nature of legislationand administration in the Chinese system. "Abstract" adminis-trative acts are characterized as acts for multiple applications,and addressed to an indefinite number of administrative sub-jects; but it seems that under the influence of democratic cen-tralism, the distinction between commands and rules becomeseasily blurred. If it is expected that all official decisions followmore general rules made "above" but there is no room for prin-cipled requests that non-compliant decisions be disregarded orstruck down, then rules meant to be general may easily fail toproduce generally binding effects. Despite being addressed tothe citizenry as a whole, the general rules in such a system do not

98. Li fa fa di liu shi si tiao [Legislation Law art. 64] (promulgated by the StandingComm. Nat'l People's Cong., Mar. 15, 2000, effective July 1, 2000) (P.R.C.), available athttp://www.novexcn.com/legislatlaw_00.html.

99. Id.100. This requires a conception of political power and of the judiciary reminiscent

of the German jurist Carl Schmitt, whose theories explain and justify totalitarianism. SeeCARL SCHMITr, DER BEGRIFF DES POLITISCHEN [THE CONCEPT OF THE POLITICAL] (GeorgeG. Schwab trans., University of Chicago Press 1996) (1932).

101. Li fa fa di jiu shi tiao, supra note 98, art. 90.

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in effect hold out any guarantee to citizens that the rules will befollowed.

In practice, this has led to the well-known problem of "red-letterhead documents." 0 2 Red-letterhead documents are docu-ments issued by administrative or party institutions, which inpractice carry the authority of law. "Rule by red-letterhead docu-ments" 10 3 has emerged, over time, as a form of local governancein which even flagrant violations of central law by locally pro-duced rules cannot be effectively challenged. Faced with a "red-letterhead document" made by a powerful local party or govern-ment authority, and restrained by the rule on "abstract adminis-trative acts," courts may choose not even to accept an applicationfor litigation, whether the challenged act itself, or only its basis,is "abstract."10 4 As a systemic problem built into the system oflegislation, and partly resulting from a narrow conception of ju-dicial powers, this issue has relevance far beyond the realm ofthe Re-education Through Labor System and the persecution ofFalungong.

In sum, as a potential court case, the case of Huang Wei washopeless at the time of the complaint, in a number of ways.From the perspective of that time there was no way the challengeto the detention of Huang Wei was going to be successful interms of the administrative litigation lawsuit Gao Zhisheng wastrying to institute. Some regulations and red letterhead docu-ments on which their detention was based could be argued to beunconstitutional, but could not be challenged in court.

The various procedural flaws and more narrowly case-re-lated further arguments Gao Zhisheng cited for why HuangWei's detention was illegal even if the Regulation for Re-educa-tion Through Labor was considered applicable, might by them-selves of course have been sufficient ground for a court decision

102. Hongtou wenjian.103. See ZHOU QINGZHI, ZHONGGUO XIANJI XINGZHENGJIEGOUJI QI YUNXING-DUI W

XIAN DE SHEHUI XUEKAO [COUNTY LEVEL GOVERNMENT ORGANIZATION AND OPERATION IN

CHINA-A SOCIOLOGICAL STUDY OF COUNTY W1 (2004).104. This is called bu yu shouli. See JIANG MING'AN, XINGZHENGFA YU XINGZHENG

SUSONG FA [ADMINISTRATIVE AND ADMINISTRATIVE PROCEDURE LAW] (Peking UniversityPress 2002) (1999) discussing ways of adressing this problem as a doctrinal issue. JiangMing'an argues that challenges to concrete administrative acts based on abstract admin-istrative acts ought to be accepted by courts, but that courts must not publicly declaresuch abstract acts invalid, even if they are illegal. Id. at 173; see also WANG ZHENMIN,

supra note 88.


in his favor. But it should have been clear from the outset thatthe court would not accept Gao's case anyway. In 1999, the Su-preme People's Court had already issued a directive to all lowercourts to the effect that cases involving Falungong petitioners incases of confiscated "illegal" material they had been chargedwith carrying should not be accepted for litigation.' 015 This di-rective and various other decisions directed against Falungong'0 6

might be abstractly questionable on a variety of legal and consti-tutional grounds; but there was no procedure whatsoever tochallenge them. Moreover, according to assertions by Gao him-self, lawyers in Beijing had been instructed not to acceptFalungong clients."0 7 If this was the case, then by merely ac-cepting Huang Wei as a client, Gao was incurring the risk ofsanctions.1

0 8

In this situation, why did Gao even try? Why did he-likehis colleagues shortly after the Sun Zhigang incident, but in acase with even fewer chances of success-act as though his argu-ment might be considered? We need not attribute to Gao anyexpectation that this attempt might somehow influence futurelegal practice; such an expectation would hardly be justifiedsince information about Falungong cases tends to be suppressed.As a matter of normative inquiry, it would be wrong to assumethat Gao simply failed to consider the chances of successful liti-gation, to describe him as dumb or naive.

Gao argued in terms of legal obligation, rather than pro-

105. See PEERENBOOM, supra note 10, at 99 n.161.106. For an overview of such regulations as of 2000, see AMNESTY INTERNATIONAL,

REPORT 2000: THE CRACKDOWN ON FALUN GONG AND OTHER "HERETICAL ORGANIZA-

TIONS" (2000), available at http://web.amnesty.org/library/print/ENGASA170112000.107. See PEERENBOOM, supra note 10; see also Letter from Gao Zhisheng, to Wu

Bangguo and the Standing Comm. Nat'l People's Cong., supra note 89.108. The legal profession is generally regulated and controlled by the All China

Lawyers' Association, which was set up in accordance with Article 37 of the 2001 Law-yers' Law as "self-regulating organization." Lushi Fa di 37 tiao [Lawyer's Law art. 37](promulgated by the Standing Comm. Nat'l People's Cong., Dec. 29, 2001, effective2002) (P.R.C.), available at http://www.cecc.gov/pages/newLaws/lawyersLawENG.php(last visited Apr. 21, 2007). The legal profession in China is also regulated by the Minis-try of Justice (an institution separate from the People's Courts and People's Procura-cies) and the bureaus under it. Id. art. 47. The People's Procuracies, as they are gener-ally responsible for the prosecution of criminal offences by lawyers in a professionalcontext, and the Party also regulate the Chinese legal profession. See William P. Afford,Of Lawyers Lost and Found: Searching for Legal Professionalism in the People's Republic ofChina, in EAST ASIAN LAW-UNIVERSAL NORMS AND LOCAL CULTURES 182, 188 (Arthur

Rossett, Lucie Cheng, & Margaret Woo eds., 2002).

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spective success. He insisted that the government had a legalduty to annul its public security bureau's illegal administrativedecision, and that consequently the court had an obligation todecide in favor of Huang Wei. t"9 Of course, he was also awarethat the court was not going to decide as it should have, in hisview. This was the reason why he took further measures to helphis client.

In fact, the court never accepted the application to adjudi-cate the case of Huang Wei protesting his administrative deten-tion. But was there therefore no point in seeking adjudication?Different perspectives on law lead to different answers to thisquestion. Institutional-reform-oriented pragmatism requires ac-tions to be taken only against obstacles that can be expected tobe removed, and indirectly discourages the recognition of thoseobstacles that no one hopes to be able to remove in the foresee-able future. According to one view of law, lawyers predict legalresults. 1 0 By contrast, "deontological"-minded rights defenderslike Gao request, rather than merely predict, legal decisions.

It has become an almost common move for rights protec-tors to make information about their cases publicly available inorder to put pressure on officials."' As we saw, this method wasused to great effect in the case of Sun Zhigang. It led to the ideaamong reformist legal scholars that, by getting the public in-volved in "impact litigation" ' 2 cases, one could put concernedinstitutions under pressure. In the specific Chinese context, im-portantly, one could also add a dimension of publicity to institu-tional processes which did not, by themselves, provide for suchpublicity. 13 In contrast to impact litigation for instance in the

109. The formulation used was "luxing zuowei yiwu, yifa chexiao xxx shi laodongjiaoyang weiyuanhui di 0000152 hao laodong jiaoyang jueding." Huang Wei's Com-plaint, supra note 70.

110. See Holmes, supra note 13.111. See Benjamin Liebman, Watchdog or Demagogue? The Media in the Chinese Legal

System, 105 COLUM. L. REV. 1 (2005).112. "Yingxiangxing susong."113. See Interview with Rights Defender #4, in Beijing, China (July 13, 2006) (on

file with author); Interview with Rights Defender #5, in Beijing, China (June 16, 2006)(on file with author); Interview with Rights Defender #5, in Beijing, China (July 27,2006) (on file with author). The project in question, Gongmeng, in English called "TheOpen Constitution Initiative," is designed to publicize cases, both in order to promotetheir just resolution, and in order to draw attention to these cases, deemed to be repre-sentative of wider legal and social problems. See Gongmeng, http://www.gongmeng.cn/com-l.php (last visited Apr. 23, 2007) (stating the objectives of the Initiative).


United States, in important and central civil rights cases inChina there may be no actual litigation process at all in suchcases.

In the case of Huang Wei, Gao Zhisheng used the same tac-tic. He published an open letter describing his involvement inHuang Wei's case as a lawyer and the process of trying to protecthim through bringing a lawsuit against the administrative deci-sion to impose Re-education Through Labor on him. He alsopublished the complaint he had drafted on behalf of HuangWei. He used an open letter-his first regarding the issue ofFalungong-to the government about the persecution ofFalungong practitioners. In this letter, after stating the basis ofHuang's complaints and narrating the process of trying to get acase accepted for litigation in three different courts, he went onto make "observations" about a number of phenomena concern-ing members of Falungong in general. His concerns includeddouble jeopardy; the wrongness of persecuting people on ac-count of their beliefs; the vagueness of language in the 1999NPC "Decision to Eradicate Evil Cult Organizations and to Pre-vent and Punish Evil Cult Activities"; the denial of basic rightsduring the detention of Falungong petitioners, the moral cor-ruption of enforcement personnel involved in this, and "viciousconduct" on the part of law enforcement officers. The strategyof the open letter may have worked. At any rate, Huang wasreleased on health grounds six months after Gao Zhisheng gotinvolved in his case. He had served fourteen months of histhree-year administrative sentence.

What this complaint, later published online, did not men-tion was that according to Gao Zhisheng's information, HuangWei had been repeatedly subjected to torture.1 14 The effects oftorture were still perceptible when Huang Wei came forward toseek legal advice." 5 The complaint also did not mention thefact that, apart from being twice subjected to administrative de-

114. In his first "open letter," addressing mainly the case of Huang Wei, he onlymentioned "the vicious behavior of legal workers" and said that in Huang Wei's case,'the legal workers' irresponsibility and their corrupt, un-professional conduct havereached an alarming level despised by any civilized society." In greater detail, it wasmentioned that Huang had been handcuffed for many hours on end. But the far moresevere torture orally alleged to have occurred was not mentioned. Letter from GaoZhisheng, to Wu Bangguo and the Standing Comm. Nat'l People's Cong., supra note89.

115. Interview with Rights Defender #2, supra note 18.

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tention, Huang had been detained at other times without anylegal form or basis at all-again according to information whichGao said he had from his client."1 6 The reason he gave for thiswas not that complaints about torture would have been impossi-ble to back up with evidence, or that his client or he himselfmight have been held responsible for making wrong allegations,although conceivably these were considerations involved at thetime. Gao explained that the strategy at the time was to addressthe illegality of persecuting Falungong generally, rather than toaddress the specific issue of torture in this case.' 17

It was only after Huang's case had been handled with somesuccess that Gao broke a pragmatic silence which he had keptwhile still handling the case. He wrote an open letter about thetorture of Falungong practitioners; and he instigated a hungerstrike to protest "violent and rights-infringing government ac-tion."

V. PROTESTING THE SYSTEM: OPEN LE7TERS AMD"RELAY HUNGER-STRIKING"

Even though Huang Wei was granted an early release, hedid not receive a decision confirming that he was innocent, orthat he had been treated wrongly."1 The judicial system hadstill failed him. Gao Zhisheng, on the other hand, had learnedmore about the persecution of Falungong practitioners throughhandling this case, l"' and through becoming a prominent per-son whom Falungong adherents seeking redress or protectionincreasingly turned to. Prior to this, he had himself been "likemany others, inured120 to the issue of Falungong, and really noteven interested in these people." 12' He now attributes this atti-tude, which he considers very widespread, to the Party-State'ssuccessful propaganda against Falungong. Even now that this

116. Id.117. Id.118. A Falungong news service also alleged that Huang's family suffered more per-

secution, for example at the beginning of 2006. Repeated Ransacking ofFalun Dafa Practi-tioner Huang Wei's Home in Shijiazhuang City, CLEARWISDOM.NET, March 25, 2006, http://clearwisdom.net/emh/articles/2006/3/25/71190.html (last visited Apr. 23, 2007).

119. See generally HUMAN RIGHTS WATCH, DANGEROUS MEDITATION: CHINA'S CAM-

PAIGN AGAINST FALUNGONG (2002); James D. Seymour, The Wheel of Law and the Rule ofLaw, in FALUN GONG'S CHALLENGE TO CHINA 170 (Danny Schechter ed., 2001).

120. Mamu.121. Interview with Rights Defender #5, supra note 113.


propaganda has been reduced, people still know that this subjectis off-bounds in certain contexts (e.g. in class), although theymay not be able to explain how they know. 122 What changedGao's attitude was confrontation with individual cases, especiallywith victims, who nevertheless inspired his admiration for havingpersisted through terrible torture. 123 In an interview with RadioFree Asia, Gao also mentioned that the decision to provide legalaid was motivated by the memory of his mother's exemplary al-truism.

124

He decided to conduct his own small-scale "investigation" oftorture against Falungong practitioners. In the fall of 2005, heundertook a journey to some northeast provinces, collecting thetestimonies of Falungong practitioners and their relatives aboutcases of alleged abuse and murder in clandestine interviews. OnOctober 18, 2005, he published an open letter on the internetabout the cases of eleven persons who described various forms oftorture they had suffered.12 5 On December 24, after anothertrip to collect such allegations in a different province (Xinjiang),he published a third open letter, similar in content to the sec-ond. To the extent possible, Gao tried to double-check informa-tion he gathered, and to obtain general reports on torture ofFalungong prisoners. 126 As they stand, the open letters shouldbe regarded as accusations and demands for further investiga-tion, in themselves very possibly insufficient as evidence in courttrials, if such trials ever happened. (The author of this Articlehas no means of independently assessing their accuracy.)

It has been persuasively argued that despite various effortsto address the problem, torture remains widely used among theChinese police (Public Security and National Security) .127 The

122. Interview with Rights Defender #2, supra note 18.123. Id.124. See Zhang Min, Gao Zhisheng lushi suifang lu (zhi qi); shiwusuo bei tingye xiang

sifabu shenqingfuyi, Gao Zhisheng yu xian xing wu yang hui xiangji mu [ Gao Zhisheng Inter-view Series (no. 7): After Closure of Law Firm Gao Zhisheng Nevertheless Goes to Visit Mother'sTomb], RADio FREE AsIA, Jan. 24, 2006 [hereinafter Zhang Min, 7th Interview], http://www.rfa.org/mandarin/other/2006/01/24/gaozhisheng (last visited Feb. 1, 2007).

125. See Gao Zhisheng, Tingzhi pohai ziyou xinyangzhe, gaishan tong Zhongguo renminde guanxi [Stop the Persecution of Persons Freely Adhering to a Faith, Improve Your Relationshipwith the Chinese People], Oct. 18, 2005, http://www.peacehall.com/news/gb/china/2005/10/200510190023.shtm (last visited Feb. 1, 2007).

126. See Interview with Rights Defender #5, supra note 113.127. See, e.g., Manfred Nowak, U.N. Comm'n on Human Rights, Report of the Special

Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

2007] 1245


lack of an explicit right to silence during interrogation as a sus-pect1 2

' and the lack of various basic protections in criminal pro-cedure, especially of the right to the presence of a lawyer, are atthe root of this problem. 129 It is at the same time prohibited andpunished by criminal law and rules on discipline, 3 ' as well as bythe 1984 Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment, which China hassigned and ratified. 3 ' Therefore, allegations of torture alwaysalso involve an accusation of great moment to those accused,and pose a risk to the accuser. Because of its neglect of the rightto silence and related procedural rights, criminal law practice onthe other hand in many ways enables the use of torture, to thepoint where law enforcement officers and investigators feel theycannot do without it. Many police officers apparently continueto think that cases cannot be "solved" (po'an) without using tor-ture.'3 2 Partly due to existing prohibitions and sanctions, andpartly due to continued uncertainty over how torture, when itoccurs, should be responded to by the legal system, allegationsare still rarely made in the context of legal processes, such as

40-59, E/CN.4/2006/6/Add.6 (Mar. 10, 2006) [hereinafter Report of the Special Rap-porteur]; AMNESTY INTERNATIONAL, EXECUTED ACCORDING TO LAW? §§ 3.1-3.2 (2004),available at http://web.amnesty.org/library/index/engasa170032004.

128. Article 93 of the Criminal Procedure Law of the People's Republic of Chinastates that:

When interrogating a criminal suspect, the investigators shall first ask thecriminal suspect whether or not he has committed any criminal act, and lethim state the circumstances of his guilt or explain his innocence; then they

may ask him questions. The criminal suspect shall answer the investigators'questions truthfully, but he shall have the right to refuse to answer any ques-

tions that are irrelevant to the case.See Criminal Procedure Law of the People's Republic of China art. 93 (promulgated bythe National People's Congress on March 17, 1996, effective January 1, 1997).

129. See Open Constitution Initiative, Lushi zai chang xiangmu, fangtan TianWenchang lushi [Right to Lawyer Program, Visiting Lawyers Tian Wenchang] (Apr. 26,2006), http://www.gongmeng.cn/sub r.php?zyj-id=497 (last visited Apr. 14, 2007).

130. See Criminal Law of the People's Republic of China arts. 247-48 (promul-gated by the National People's Congress on July 1, 1979, revised Mar. 14, 1997). For adiscussion of these and related legal provisions, see Report of the Special Rapporteur, supranote 127, 14-20.

131. China ratified the Convention in 1988. See Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85; seealso Off. High Nations High Comm'r for Human Rights, Ratifications and Reservations,http://www.ohchr.org/english/countries/ratification/9.htm#N4 (last visited Apr. 24,2007).

132. See SONG YINGHUI, XINGSHI SUSONG YUANLI DAODU [INTRODUCTION TO THE ELE-

MENTS OF CRIMINAL PROCEDURE] 329 (2003).


litigation. Or if they are made, they may not be followed up ap-propriately.

1 33

To judge from the very limited material used in the contextof this Article, it must be difficult to talk about torture in a waythat appears truthful to the speaker. It changes its victims; itspreads fear, of course; it has been characterized as an "illusoryspectacle of power," to quote Elaine Scarry.' 34 It does not makesense; and those who try to comment on it will not want to makesense of it. For those gathering information from victims, thereare the problems of voyeurism, of a natural reluctance to de-scribe people in situations of extreme pain and humiliation, andof interacting with victims whose rationality and judgment mayhave been impaired. This obviously makes it harder to rely onsuch descriptions as evidence. One rights defender reportedthat persons he talked to had become "like animals," 13' and per-haps that is where attempts at describing his own impressionshad to stop.

In Gao Zhisheng's two open letters on this subject, hemostly confined himself to putting the allegations he was passingon in the form of verbatim records, eliminating, as it were, hisown intermediary role and giving the impression that the victimsthemselves are relating their experience.

In an interview, a friend who accompanied Gao on his sec-ond "investigative trip" commented on the targeting of the pris-oners' genitals during torture, a practice described as routine byGao. This description may give a sense not only of the kinds of

133. In 2003, for example, the trial of a mafia boss in Heilongjiang attracted greatpublic attention because the investigation was said to have involved torture. One ofChina's most prominent criminal procedure law professors, a visiting vice president ofthe CLA criminal law group, observed that even to write that torture might have oc-curred was a "daring" thing to do on the part of the 2nd Instance court. See ChenGuangzhong, Zhuanfang Zhongguo faxuehui fuhuizhang Chen Guangzhong: gaipansihuan tixian lefazhi fingshen [Vice President of China's Official Legal Studies Associa-tion: A Sentence Commuting to Death Penalty With Two Years' Reprieve Which Manifest theSpirit of the Rule of Law], Dec. 24, 2003, http://www.law-thinker.com/detail.asp?id=1900(last visited Feb. 1, 2007).

134. Scarry comments:

The physical pain is so incontestably real that it seems to confer its quality of"incontestable reality" on that power that has brought it into being. It is, ofcourse, precisely because the reality of that power is so highly contestable, theregime so unstable, that torture is being used.

ELaINE ScARRv, THE BoDy IN PAIN 27 (1985).135. See Interview with Rights Defender #2, supra note 18.

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torture allegedly inflicted, but also of how difficult it is to talkabout such crimes.136 It reads as follows:

My emotional response was very complicated. I mean, howcan China as a civilized society, how can civilized people havesuch an inhumane phenomenon, a reality so much in nega-tion of human nature? It is completely impossible to contem-plate! It made us feel that we just were not humans, all of us;what they did, as part of humanity it made us feel that we lostthe claim to be human. And actually the things we heard ofmay not even be the worst. Not even to mention the oneswho died .... Those that stayed alive - for instance the oneswe stayed with for these past few days - they didn't know howmany times they had passed out, how many times they hadbeen subjected to the "Great Punishment" and to the "TigerBench" and these things . . . and the police would still useelectroshocks on someone lying on the "death bed." Theyelectro-shocked his penis. The electroshock baton has ametal tip transmitting electricity; the shock goes right into thepenis. The guy had already no other good place left on hisbody, but oh, there, his penis is still good, so let's put it there,let's see what happens if we electroshock his penis. Theythen used a metal bar to smash his penis. I was too embar-rassed to ask what it was like now, for instance how he uri-nated. I thought it was unimaginable. 137

Another friend, rights defender Guo Feixiong (Yang Maodong),in an interview described Gao as having entered into a "big" psy-chological mode ("weida zhuangtai") after his investigation trips.Asked to clarify what he meant by "big," Guo said that only thismode allowed him to speak up on the issue of Falungong perse-cution, when nobody else did.138

Announcing this step in the Third Open Letter, and re-marking that "all individual private interests and any individual

136. See Gao Zhisheng, Third Open Letter to HuJintao and WenJiabao [hereinaf-ter Third Open Letter] (Dec. 12, 2005). For an English translation of this letter, seeGao Zhisheng, Why One of China's Top Attorneys Broke with the Communist Party, EPocHTIMES, Dec. 16, 2005, http://en.epochtimes.com/news/5-12-16/35876.html (last visitedApr. 16, 2007).

137. Zhang Min, 7th interview, supra note 124.138. See Zhang Min, Gao Zhisheng suifang lu (zhi liu), Tan 'Jiyi, " "shenpan," yu

"quanmin hejie" [ Gao Zhisheng Interview Series (no. 6), On "memory" "trial" and "harmoniousreconciliation among the entire people"], RADIO FREE AsIA,Jan. 10, 2006, [hereinafter ZhangMin, 6th interview] http://www.rfa.org/mandarin/other/2006/01/10/gaozhisheng6/(last visited Feb. 1, 2007).


immediate needs had become entirely irrelevant" now, GaoZhisheng then openly quit the Party. 39 From the publication ofhis second open letter he became unable to continue workingnormally as a lawyer, as his law firm was suspended from practicefor one year and he was put under surveillance. So he plungedinto a series of novel "rights-defense" actions. While he did notattempt again on behalf of Falungong torture victims to use theavenues of redress provided by the legal system, he continuedcommenting, as a lawyer might, on individual cases brought tohis attention. Entitled "Lawyer Gao Talks About Cases," a seriesof radio interviews broadcast by a Falungong radio programfrom outside China addressed a wide range of ordinary casessuch as assaults, land seizures, etc., brought to his attentionthrough letters by petitioners and other complainants, which hecontinued receiving in large numbers throughout the months ofsurveillance. 4 0

In early February 2006, after the second fact-finding trip toinvestigate Falungong persecution together with Jiao Guobiao,Gao and some fellow rights defenders including Zhao Xin andHujia announced a "Relay Hunger Strike Movement to OpposeViolence." It was to be staged by rights defenders and sympathiz-ers all across the country.'4 1 The "strikers" would actually noteat for just one day, and they would perform the strike in theirown homes or their workplaces. The degree of associationamong participants and prominent protagonists was to be loose,in order to avoid trouble with the legal rules on associations.The declared aim of the hunger-strike was to "oppose violenceand rights violations in government, to defend human rights, de-mocracy and rule of law."' 4 2 Certain key figures, including

139. See Zhang Min, 7th interview, supra note 124.140. See Interview with Rights Defender #2, supra note 18. For audio files of the

program, see Gao lushi shuo [Lawyer Gao Discusses Cases], Sound of Hope, July 24,2006, http://soundofhope.org/programs/772/43487-1.asp (last visited Feb. 1, 2007).

141. Interestingly, in the first interview after the announcement of the hunger-strike, Gao does not mention his collection of Falungong torture allegations, but ratheremphasizes recent beatings of other lawyers, rights activists, and villagers, including Pro-fessor Ai Xiaoming, villagers in Taishi village and Chen Guangcheng. See Zhang Min,Gao Zhisheng lushi fangtan lu (zhi jiu); jieli jueshi, weiquan kang bao-changyi yu fanxiang[ Gao Zhisheng Interview Series (no. 9)-Relay Hunger-striking, Rights Defending and Protestingviolence-The Launch of the Strike and Reactions], RADiO FREE AsIA, Feb. 13, 2006 [herein-after Zhang Min, 9th Interview], http://www.rfa.org/mandarin/other/2006/02/13/gaozhisheng9 (last visited Apr. 16, 2007).

142. Kangyi hei'e baoli qinquan, hanwei renquan minzhu zhengzhi. Id.

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prominently Gao, would each for themselves conduct a "relay"hunger strike on one day of the week, and supporters could joinin at their own convenience. Participants' names would be pub-lished and hunger-strikers could write down their views, feelings,and individual experiences of cases of injustice; some of thesenotes were later published online.

This low-key action could only even be noticed in theunique conditions of communication and information transfernow created by the internet and its various uses. Its inventorsand protagonists praised "relay hunger-striking" as a new form ofpeaceful resistance. They made explicit references to Gandhiand Martin Luther King.'4 ' As a congregation of passive fastersin a new virtual space, highly visible but not really tangible as acongregation, this was the kind of thing that state law would findhard to "get at," a least through the legal instruments of demon-stration law and laws and regulations on social order. Thosewho supported the hunger-strike, including a number of promi-nent academics and constitutionalists, emphasized the legality ofthe strikes against a background of what they perceived to beincreasingly brutal repression of lawyers. Teng Biao, a constitu-tional scholar and rights activist then already well-known due tohis involvement in the Sun Zhigang case, and through his investi-gation of allegations of brutal abuses in the context of birth con-trol regulations in a place in rural Shandong, explained:

Nor do I think that this is a very "activist" political movement,this is a non-violent way of expressing oneself, everybody hun-ger-strikes in their own home and then writes up their feel-ings and thoughts about the hunger-strike [experience],showing their concern for Chinese politics. I think that is en-tirely in accordance with the law, as well as with reason. 1 4 4

Invoking the examples of Martin Luther King and of MahatmaGandhi, Professor Fan Yafeng, another constitutional scholarand activist supporting the hunger-strike, commented:

It could be said that the rights protection relay hunger-strikemovement comes at a turning point in the rights protectionmovement on the mainland. The hunger-strike is unlimited

143. See Zhang Min, Gao lushi suifang lu (zhi shiwu) [ 15th interview with Lawyer Gaol,Mar. 28, 2006, http://www.chinaaffairs.org/gb/detail.asp?id=62051 (last visited Feb. 1,2007); Interview with Rights Defender #3, supra note 63; Interview with Rights Defender#6, in Beijing, China (July 16, 2006) (on file with author).

144. Zhang Min, 9th Interview, supra note 141.


in terms of its overall duration but it is limited to periods oftime. Actually the time-limit is a central part of the strike; thisway, on the basis of such a time limit, it is possible to stage thehunger-strike at a large scale involving the mainland, over-seas, places all around the earth. Within the limited time andspace of hunger-striking it may be possible to trigger a verylarge movement.

And why is it that the conditions of this hunger-strike arenot like the saint Gandhi's ones, taking place over a long pe-riod of time and getting very tough? This reflects lessons fromMartin Luther King's civil rights movement in America. Avery important innovation in the American civil rights move-ment was that a black person only had to stand on a platformwhere the whites would not allow him for five minutes, andhe could already be regarded as part of the civil rights move-ment ....

I see a slightly better prospect now for the opposition tofeudalism, autocracy, and aristocratic capitalism and for thestrengthening of rights consciousness, harmony and balanceamong state powers, as well as for a justice-loving and legaland democratic society. That is to say, the liberal and demo-cratic forces on the mainland will perhaps through the rightsprotection relay hunger-strike movement be able to build astable, rational and peaceful basis.14 5

Yet, as the discussion in the previous section has shown, Chinadoes not currently have a legal system that would allow for cer-tain civil rights demands to be gradually absorbed into legalpractice. Nor does it have media able to report on movementslike a "relay hunger strike," nor, consequently, a reasonably well-informed and politically influential wider public to exercise pres-sures for policy changes. Fan's search for historical parallels thatsuggest political success is problematic, as he himself acknowl-edged.'46 Whether looking, as rights defenders in China nowdo, toward the United States or India, or looking toward otherEast Asian countries such as Taiwan, the abovementioned pecu-liarities of public administration, legislation and judicial practicein China, especially the fragmentation of Party-State authority init, place China in a uniquely precarious situation. While it iswidely acknowledged that the early years of the current decade,especially 2003, showed some promise that the system might be-

145. Zhang Min, 7th Interview, supra note 124.146. See Interview with Rights Defender #3, supra note 63.

20071 1251


come better able to respond to basic demands for rights protec-tion, 1 4 7 developments since then have shattered many hopescherished at the time. The unconstitutionality review system hasnot produced another notable success. Courts have not adjudi-cated another major case explicitly addressing constitutionalrights since 2001;148 or if they have, this did not become knownto a wider public. Efforts to strengthen the role of the courts areat best described as "modest" by western observers, 149 and thefact thatjudges are asserting a desire to judge independently willnot necessarily strengthen the judiciary as an institution, espe-cially in circumstances in which new pressures are brought tobear on them, for instance from discussion in the public mediaand on the internet.1 50 Of course, such trends might well bereversed again in the future.

The question remaining therefore was how the "relay hun-ger-strike" could be successful, and what would count as successboth in terms of the strike's goal and of its methods. As men-tioned, the primary stated goal was "to oppose violence in gov-ernment"; there was nothing resembling an institutional reformgoal in the many communications posted on the internet. Thisvagueness, the fact, in particular, that there was no conditionupon which the strike would be ended,' seems to be as muchan expression of the vagueness of the rights defenders' besthopes, as a response to a system as quick to repress speech oraction explicitly addressing a specific political concern as theChinese system. Since it also lacks much of the urgency andpressure generated by the threat of people dying as martyrs fortheir cause, the "relay hunger strike" had perhaps best be under-

147. On the Sun Zhigang case, see supra notes 80-83 and accompanying text.148. For information on the Qi Yuling case, referred to here, see Huang Songyou,

Xianfa sifahua jiqi yiyi-cong zuigao renmin fayuan fintian de yige "pifu" tanqi [A DiscussionofJudicialisation of the Constitution Based on an Approval Notice by the SPC], Sept. 16, 2001,http://www.law-thinker.com/show.asp?id=205 (last visited Feb. 1, 2007); see also ZHOUWEI, XIANFA JIBEN QUANLI SIFA JIUJI yANJIU [A STUDY ON JUDICIAL REMEDIES FOR FUNDA-

MENTAL CONSTITUTIONAL RIGHTS] 161 (2003).149. See Jerome Alan Cohen, China's Legal Reform at the Crossroads, FAR E. ECON.

REv. 23 (Mar. 2006).150. See Liebman and Wu, China's Network Justice Draft, http://papers.ssm.com/

sol3/cf.dev/absbyauth.cfm/econ.korea.ac.kr/www.solvay.edu/cours/AbsByAuth.cfm?perid=332474, at 49 (last visited May 22, 2007).

151. Gao Zhisheng offered terminating his own hunger-strike on certain condi-tions later in one of his articles posted online. The conditions included a full investiga-tion into Falungong persecution issues.


stood as a particular form of political expression, devised forChina's peculiar situation. Contrary to Fan Yafeng's analysis, it isnot the breaking of a particular legal rule that is at the focus ofthis activity, as in the Civil Rights Movement of the 1960s in theUnited States, when people might stand on a platform and thusact "against the law," at the same time claiming that their actionought to be allowed by higher legal (constitutional) standards.What is targeted, instead, could be understood as an undefinedand largely extra-legal exaction of pragmatic silences by theParty-state. While "violence" especially in government was itselfillegal in most cases, protest against it might nevertheless be re-pressed. From the perspective of the organizers of the "hunger-strike," it might be said that the right way to capture this kind ofvague exaction has to be itself vague, and that the right way tochallenge it has to be itself silent.

In numerous conversations, the author has gained the im-pression that some of the "rights defenders" currently active inChina have given up on institutional reform, understood as theslow and incremental process of transforming existent legal insti-tutions to bring them closer to a rule of law ideal such as thejudiciary or the practice of the National People's Congress,which was still being envisaged as late as 2003. A prominent ex-ample for scholarship embracing institutional reform would bethe book The Chinese System for Constitutionality Review, publishedin 2004 by Wang Zhenmin of Tsinghua University Law School.It not only incisively analyzed the current system of unconstitu-tionality review, but also boldly made a suggestion for a new in-stitution, namely, a national level Constitutional Court. 5 2 Anexample for this kind of thinking put in practice would appearto be the case of Sun Zhigang, discussed above; and indeed thiscase was immediately taken up by academics, not only while ithappened but also after it had happened, and discussed atlength, for instance, in a book entitled To Choose ConstitutionalLaw by Wang Lei of Peking University Law School.1 53

By 2006, the rights defenders consulted in the context ofthis Article, including scholars directly involved in the Sun Zhi-gang case, appeared to have concluded that one could no longer

152. See WANG ZHENMIN, supra note 88, at 382, 393 tbl. .153. See generally WANG LEI, XUANZE XIANFA [To CHOOSE CONSTITUTIONAL LAW]

(2004).

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"put hope in institutional reform."1 5 4 Gradually, the people inthis group had become more skeptical. Some of those originallyworking as normal legal academics, such as Fan Yafeng (ChineseAcademy of Social Sciences Legal Studies Institute), Teng Biao(China University of Political Science and Law), and Xu Zhiyong(China Telecommunications University) approached peopleoriginally situated in the various democracy and human rightsmovements China has experienced over the past, such as MaWendu, Zhao Xin, and Hou Wenzhuo, as well as lawyers of"humble origins" such as Gao Zhisheng (formerly Shengzhi LawFirm) and Li Heping (Globe Law Firm), and peasant leaderssuch as Liu Zhengyou. Increasingly, some rights defendersworking on human rights cases come to view their work as em-bedded in a political system, which they challenge to varying de-grees, by doing their work and by the attitudes they develop inthe course of doing their work.'55 Rights activism in China, ac-cording to the views of some of its protagonists, must includeefforts to "raise the power of civil society" rather than restrictitself to strengthening the role of legal professionals. This can bedone, for instance, by publicizing individual, representative casesof rights abuse,156 and by making ordinary people, includingpeasants, aware of the possibility of non-violent means of rightsprotection.1

57

To make the point of the movement and of the rights activ-ism of the organization "Open Constitution Initiative" clearer,one such rights defender made a specific reference to the workof the Czech author, dissident and later president Vaclav Havel,citing to his important 1978 essay on the ideas of "living intruth," a possibility which he says reflects and constitutes the"power of the powerless." 158 Not every Chinese citizen, he said,would be willing to take the risk to speak up on particularly sen-sitive issues (such as torture allegations regarding Falungong ad-

154. See, e.g., Interview with Rights Defender #5, supra note 113.155. See Interview with Rights Defender #5, supra note 113.156. See, for example, the case of the Linyi birth control abuses.157. In a conversation in July 2006, a rights defender spoke of the necessity to

improve the quality (suzhi) of the population which, he thought, required educationalefforts on the part of a rights-defending elite. See Interview with Rights Defender #6,supra note 143.

158. See VACLAV HAVEL, Moc BEZMOCNYCH [LIVING IN TRUTH], Prague, 1978, trans-lated into English as "The Power of the Powerless" and published under the book titleLIVING IN TRUTH 36-122 (Jan Vladislav ed., 1986).


herents). But "living in truth" might be given a negative defini-tion-not engaging in telling lies, even if that would be advanta-geous, in a social context in which telling a particular kind of lieis common.' 59 The reference to Havel is interesting, not onlybecause Havel is known for insisting both on the distinction be-tween the moral motivation of an act, and its effects, and on thepossibility that "purely" moral acts may ultimately gain politicalsignificance.

Are not these communities (and they are communities morethan organizations)-motivated mainly by a common belief in theprofound significance of what they are doing since they have nochance of direct, external success-joined together by preciselythe kind of atmosphere in which the formalised and ritual-ized ties common in the official structures are supplanted bya living sense of solidarity and fraternity? . . . Is not their at-tempt to create an articulate form of 'living within the truth'... a sign of some kind of rudimentary moral reconstitution?In other words, are not these informed, non-bureaucratic, dy-namic and open communities that comprise the 'parallelpolis' a kind of rudimentary prefiguration, a symbolic modelof those more meaningful 'post-democratic' political struc-tures that might become the foundation of a better soci-ety?'

16 0

Since the events of 1989-1990 surprised many of reform's mainprotagonists, Havel's name may also stand as an expression ofhope for a similarly unpredictable change in China.

While rights defenders continue in their efforts to"strengthen civil society," they are also confronted with the ques-tion of what their attitude is toward the use of violence to opposegovernment authorities. Violent means are adopted in manyplaces by ordinary people who consider themselves to be "de-fending their rights," and who often have tried unsuccessfully toaccess the State's legal institutions, such as the courts and peti-tioning bureaus, before they turn to violence. This concerns thegeneral ethical problem whether physical resistance againstwhat, from the perspective of the rights defenders, is an in someinstances grossly unjust government, may ever be justified.

None of the rights defenders consulted for the purpose of

159. See Interview with Rights Defender #5, supra note 113; see also HAVEL, supranote 158, at 84.

160. Id. at 120-21 (emphasis added).

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this Article endorsed violence. Instead, most of them stressedthat the mission of rights defenders and lawyers such as theythemselves was to lessen the risk of violence by showing that al-ternatives to violence existed. Nor, in accordance with the statedcommitment to non-violence, has there been any call for rebel-lion, insurgence, or subversion of the Party-State's power by anyof the rights defenders. Many of their writings have emphasizedthe importance of "non-violence."161

But some rights defenders did observe that whatever theirhopes, they might not in fact be able to reverse increasing trends,as they perceived them, toward increased use of violence on thepart of dissatisfied people. They explained how violent meansmight be adopted by people "despairing" of all means of redress,noting that most frequently, violent "revenge" against officialswas taken in suicide attacks using explosives.162 Gao Zhisheng,who opposes violence, said in a notable piece published in April2006 that central government was "running out of time" to ad-dress serious human rights issues, and that an increase in violentresistance must be expected in the near future. 161

The non-violent "relay hunger-strikes" were reported in Chi-nese language as well as in U.S. and European media (albeit notin media legally distributed in China, of course). It is hard toassess how many people, and especially how many people inmainland China, joined in (at least "hundreds" according to theorganizers). Some overseas Chinese-language media, in particu-

161. See, e.g., Zhongguo weiquan jieli jueshi kangbao yundong zhanxing zhixu [ The Provi-sional Rules for the Rights Defense Relay Hunger Strike Movement to Oppose Violence], Feb. 9,2006, http://peacehall.com/news/gb/china/2006/02/200602092255.shtml (last vis-ited Feb. 1, 2007); Guo Feixiong, Dui quanqiu weiquan kang bao jielijueshi de luntan [Criti-cal Discussion of the Global Relay Hunger Strike Movement to Oppose Violence], at 1-5, http://peacehall.com/news/gb/pubvp/2006/04/200604020058.shtml (last visited Feb. 1,2007); Wang Yi, Weiquan yundong de zhejin yu fei baoli-zai caotang dushuhui de jianghua[Slow Progress and Non-violence of the Rights Defense Movement], May 19, 2006, http://www.peacehall.com/news/gb/china/2006/05/200605200138.shtml (last visited Feb. 1,2007).


163. See Gao Zhisheng, Liumang baozheng zhi zhengge minzu yu "huoyaodong"zhishang-ji zhonggong liumang zhengquan yi heibang shoufa weidu wo quanjia de di 132 tian[ The Mafia-like Government has put the Entire Nation on a Gunpowder Barrel- Written on the132th day of the CCP Surrounding and Obstructing My Entire Family by Mafia-Like Methods,Apr. 2, 2006, http://www.dajiyuan.com/gb/6/4/2/n1274702.htm (last visited Feb. 1,2007).


lar those close to Falungong, reported them as a great success;but there are no reliable numbers available.

The government soon responded. Surveillance of Gao andhis family was increased, his home and work phone-lines werecut off and his internet connection was disrupted. A number ofarrests followed, and more and more people supporting thestrike "disappeared" for varying lengths of time. 64 As a conse-quence, Gao Zhisheng announced that he would hold a hunger-strike himself every Saturday while the "relay" hunger strikewould continue, but without the requirement of hunger-strikerscalling his office to register their phone numbers. Participantswould moreover be allowed to use aliases to avoid persecution.In this form, the strike continues at the time of writing.

VI. CONSEQUENCES AND RESPONSIBILITIES

Even in his October 2005 letter (the second open letter),Gao had already explained:

A new wave of systematic, large scale, organized violence andbrutal persecution of Falungong adherents is occurring at thepresent time. This is a fact not only reflected in letters sentrecently from many different places, but also a fact that wehave seen with our own eyes during our last trip. As a citizen,as a lawyer, I am willing to bear any legal consequence ofmaking this known to the public.

The actions taken by the Party-State, as described by Gao and anumber of legal scholars and practitioners in articles and inter-views, were not legal in every respect. But they partly chose alegal form. We can discern a dualistic strategy: on the onehand, there was a one-year suspension of Shengzhi law firm bythe Beijing Bureau of Justice under the Ministry of Justice.'6 5 It

164. Prominent among these was the activist Hu Jia, who was detained in an un-known location for forty-one days, by people who did not disclose who they were. SeeZhang Min, Dawen-chujing-jueshizhemen, Gao Zhisheng lushi suifang lu (zhi shiyi) [Inter-view Series with Gao Zhisheng (no. 11)-Answers from the Hungerstrikers], Radio Free Asia,Feb. 28, 2006, http://www.rfa.org/mandarin/other/2006/02/28/gaozhishengl (lastvisited Apr. 13, 2007).

165. See Beijing shi sifa jue guanyu dui Beijing shi Shengzhi lushi shiwusuo dechufajueding [Punishment Judgment to the Beijing Shengzhi Law Firm by the BeijingJudicial Bureau], Nov. 30, 2005 (on file with author); Beijing shi sifaju xingzheng chufazhixing gaozhi shu [Executory Notice of Administrative Punishment by the BeijingJudi-cial Bureau], Nov. 30, 2006 (on file with author); Xingzheng fuyi shenqing shu [Appli-cation for Administrative Reconsideration by Shengzhi Law Firm],Jan. 19, 2006 (on file

2007] 1257


went through the formal stages of administrative decision, ad-ministrative reconsideration, and-unsuccessful-administrativelitigation.

The decision to suspend Shengzhi Law Firm's practice forone year was based on two reasons: first, the firm had failed toregister its new address with the supervising bureau under theMinistry of Justice, when it moved offices in June 2005. Second,the Beijing Justice Bureau said that it had found that a lawyerbelonging to Shengzhi Law firm (Wen Haibo), and another noteven belonging to it, had requested to see the criminal suspectYang Maodong (a lawyer publicly known under the alias GuoFeixiong) who was then detained in Panyu in Guangdong, with-out Shengzhi law firm being able to produce its own records ofreceiving a mandate from Yang Maodong (Guo Feixiong). Theyhad met with the suspect on the strength of an "introductionletter" containing both lawyers' names, which was handed to thelocal police detention center. The letter did not satisfy the re-quirement to use standardized law firm administration forms forrecording mandates received,' 6 6 and did not present any evi-dence of Shengzhi law firm having formally authorized the men-tioned other lawyer to work on this case. The violation, the deci-sion stated, "was especially serious."167

Shengzhi law firm, represented by rights defenders belong-ing to other law firms, contested both points. It argued thatShengzhi law firm tried several times to register the change ofaddress but was not allowed to do so. In their application foradministrative reconsideration, the lawyers also argued-eventu-ally unsuccessfully-that failure to use standardized letters orforms for the inner administration of a law firm was not suffi-cient ground for closing it down for one year.'6 8 They argued,

with author); Zhonghua renmin gongheguo sifabu xingzheng fuyi jueding shu [Judg-ment of Administrative Reconsideration by the People's Republic of China Departmentof Justice], Mar. 17, 2006 (on file with author); Xingzheng qisu shu [Application forAdministrative Litigation], Mar. 30, 2006 (on file with author).

166. BEIJINGJUSTICE BuREAu, Decision on Administrative Punishment (on file withauthor).

167. "Shuyu qingie yanzhong."168. In an interview, but not in the application for administrative reconsideration,

one of the lawyers also pointed out that the additional name of the Guangzhou lawyernot belonging to Shengzhi law firm, Tang Jingling, must have been added to the docu-ment in question. At Shengzhi, Li said, it was unclear how the name had been added,but TangJingling had not written it himself, and had provided his own documentation.See Zhang Min, Gao Zhisheng lushi suifang lu (zhi san)-zai jingcha genzong fiankong xia


moreover, that according to the Lawyer's Law, the Administra-tive Punishment Law, and the Administrative Permit Law, fouradministrative regulations on which the measure againstShengzhi law firm was based were illegal and should be struckdown or altered. These requests were made in the context ofadministrative reconsideration, in which as mentioned it is possi-ble to challenge the legality of administrative legislation.' 69

The two lawyers working on this case claimed that the sus-pension of Shengzhi Law Firm was motivated by the desire to"get at" Gao Zhisheng, 7 ° whereas the Beijing Bureau of Justice,in November and December 2005, respectively, issued state-ments addressed to all Beijing law firms, to the effect that legalrequirements and procedures were strictly followed, and that nopolitical motivations existed for the measure imposed onShengzhi law firm. 7 ' The second one also pointed out that fiveother law firms had been disciplined for not adhering to rules.Moreover, the first of these announcements contained an admo-nition. It was dated November 8, 2005, that is before the legaldispute about the suspension of Shengzhi Law Firm had begun.It read:

All of the city's law firms and lawyers ought to take a high-minded attitude, conscientiously acknowledge the true ac-count, and raise their ability to discern right from wrong in

[Gao Zhisheng Interview Series (no. 3)-Under Police Persecution and Surveillance], R DOFREE ASIA, Nov. 29, 2005, http://www.rfa.org/mandarin/other/2005/11/29/gaozhisheng (last visited Apr. 13, 2007) (hereinafter Zhang Min, 3rd Interview].

169. See Zhang Min, Gao Zhisheng lushi suifanglu (zhi er) - tingzhenghui mu qian muhou i [ Gao Zhisheng Interview Series (no. 2)-Before and After the Hearing], Nov. 24, 2005,http://www.peacehall.com/news/gb/china/2005/11/200511241241.shtml (last visitedFeb. 1, 2007); Interview with Rights Defender #1, supra note 14.

170. Extensive analysis of the decision, and of the entire legal process it triggeredby Li Heping and Xu Zhiyong, as well as Gao Zhisheng, Zhang Sizhi and Teng Biao, isprovided in the interviews with Zhang Min from Radio Free Asia. See Zhang Min, 3rdInterview, supra note 168; Zhang Min, Gao Zhisheng lushi suifang lu (zhi si)-Gao Zhishengshuaidiao genzong qu ban an; sifaju chufa juedingshu songda [ Gao Zhisheng Interview Series(no. 4)-Gao Zhisheng Shakes Off Surveillance to Handle a Case; Notice of Law Firm ClosureServed], RADIO FREE ASIA, Dec. 6, 2005, http://www.rfa.org/mandarin/other/2005/12/06/gaozhisheng/ (last visited Apr. 14, 2007).

171. Copies of these statements, in the form of letters addressed to all Beijing law-yers (law firms), are on file with the author. See Beijing shi sifaju guanyu Gao Zhisheng detonggao [Beijing City Justice Bureau announcement regarding Gao Zhisheng] Nov. 8, 2005 (onfile with author); Beijing shi sifaju guanyu dui Beijing shi shengzhi lushishiwusuoxingzheng chufa qingkuang de tongbao [Beijing City Justice Bureau announcementregarding the circumstances of the administrative punishment imposed on theShengzhi Law Firm in Beijing City], Dec. 5, 2005 (copy on file with author).

2007] 1259


this affair. Do not accept untruthful and distorted reportsfrom foreign media and illegal organizations. Do not partici-pate in any instigating or organizing activities by foreign me-dia or by individuals with ulterior motives. If you receive re-ports regarding Shengzhi Law Firm or Lawyer Gao from for-eign media or illegal organizations, report directly to thisBureau. 1

72

The suspension of Shengzhi Law Firm's license to operate re-flects a wider tendency in recent years to strengthen the supervi-sion of legal professionals in China through legal regulation.The dispute it triggered reflects the profession's resentment ofthis trend. Supervision, extended to professionals and actors po-tentially critical of the Party-State by means of new legislation ofan administrative, regulating kind, now allows for any number oflegalistic squabbles with the affected persons or entities, but alsofor the claim that things are handled 'in accordance with law."Faced with new legislation which, from their perspective, violateshigher-ranking norms either by itself or as applied, lawyers findthat the obstacles to challenging such norms now suddenly affectthemselves, not only their clients. As various lawyers observed inconversation, this has produced the need to "defend the rightsdefenders."'73

One among the rights defenders commented on the trendto "legalize" control of the profession as follows:

You know, recently the Communist Party's control has be-come increasingly refined. The majority of the Communistparty cadres have all been abroad. Many of those who havebeen at Harvard's UJohn F.] Kennedy School of Governmentare high level cadres.... The control is becoming more andmore refined, and there's nothing one can do about it. Inrecent years there is a clear tendency, regarding the increasedcontrol of the media, internet law, the control of the internet,control regarding lawyers, and what do they rely on? Legisla-

172. See Beijing shi sifaju guanyu Gao Zhisheng de tonggao [Beijing City Justice Bureauannouncement regarding Gao Zhisheng], supra note 171.

173. See, e.g., Interview with Rights Defender #6, supra note 143. The "Open Con-stitution Initiative" supported by Teng Biao, Xu Zhiyong and others, for instance, cre-ated a program entitled "The Right to Have a Lawyer Present." For an introduction tothis program (lushi zai chang xiangmu) and further links, see Open Constitution Initia-tive, http://www.gongmeng.cn/sub list.php?zyj_mid=62 (last visited Feb. 1, 2007). Theprogram drew attention to the difficulties of lawyers trying to help clients in publicinterest cases especially in rural settings. It came to co-ordinate a large number of law-yers seeking to help a prominent blind "barefoot" lawyer, for instance.


tion. Now they can with just one law render several thousandpeople unable to make any move!

And where are these techniques coming from? From thewest, from a large number of cadres who received their edu-cation in the west. It is like the law was in Germany, formerly,exercising control through the law. You know, China did notuse to be like that. It used to have just arbitrary rule. Butnow that control relies on law, the degree of "legality" hasincreased and so they can now say that they are entirely "do-ing things according to law."1 74

These comments bring to mind a number of then new regula-tions and "red-letterhead documents" targeting the professionalgroups she mentioned. These include, for instance, a draft regu-lation on the reporting of sudden incidents by the media.175

They also include a Guiding Opinion of the All China Lawyers Associ-ation Regarding Lawyers Handling Cases of a Mass Nature ("GuidingOpinion"),'176 and a campaign for the construction of a "Chinesesocialist legal system" which admonishes the procuracy, the po-lice and the courts to "co-operate."1 77 These developments arean important, albeit unintended and for many unwelcome, as-pect of legal reform in China. Professor He Weifang's sarcasticcomment on the implications of the new Guiding Opinion for law-yers may remind us of the Beijing Justice Bureau's exhortationto other Beijing lawyers to "take a high-minded attitude" and"conscientiously acknowledge the true account" in the case ofGao Zhisheng:

I think that the emergence of such a document [the GuidingOpinion] is not accidental; we all know that recently, for the

174. See Interview with Rights Defender #6, supra note 143.175. On the debate of this draft legislation, see Wan Gan, Zhongguo tufa shijian fa

gei meiti shang jinguzhou shanzi baodao fa shi wan [Trammels Imposed on MediaReporting of Sudden Incidents; Penalties of Ten Thousand for Unauthorized Reports],June 25, 2006, http://www.peacehall.com/news/gb/china/2006/06/200606252309.shtml (last visited Feb. 1, 2007); Open Constitution Initiative, supra note 173.

176. See All China Lawyer's Ass'n, Zhonghua quanguo lushi xiehui guanyu lushi banliquntixing anjian zhidao yijian [Guiding Opinion of the All China Lawyers Association Regard-ing Lauyers Handling Cases of a Mass Nature], Mar. 20, 2006, http://www.chineselawyer.com.cn/pages/2006-5-15/s34852.html (last visited Feb. 1, 2007) [hereinafter GuidingOpinion], translated in Congressional-Executive Commission on China ("CECC"), Guid-ing Opinion of the All China Lawyers Association Regarding Lawyers Handling Cases of a MassNature (CECC Full Translation), May 30, 2006, http://www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=54314 (last visited Apr. 14, 2007).

177. See Interview with Expert Lawyer, in Beijing, China (July 27, 2006).

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past year or even longer, lawyers all across the country havebeen subjected to re-adjustment and rectification 78 by theMinistry of Justice or the All China Lawyers' Association.That is to say, the lawyers were treated as a group of people inneed of regulation and education, and restraint. So we cannever be grown-ups, we will always belong to a category ofpeople who are being educated and rectified. Apart fromspecial education and rectification programs [for lawyers] weare also frequently subjected to Preserving Progressiveness,'79

The Three Emphases"8 and similar broader education pro-grams. This never-ending uninterrupted education justmakes it clear that we are not yet grown up, and consequentlyneed to learn from the grown-up people. This is a traditionof ours.'

8 1

Following the dualistic strategy mentioned above, Gao was notonly subjected to "legal" measures such as the closing down ofhis law firm for one year, but also to twenty-four-hour persecu-tion through the presence of plainclothes police and specialagents. He had his phone connections cut off or frequently dis-rupted, and his internet access was severely restricted and even-tually interrupted. 2 If Gao left his home, the special agentswould follow. An early illustration of this was provided by Man-fred Nowak, the U.N. Special Rapporteur on Torture who wason a mission to China and met with Gao Zhisheng on November20-21, 2005. Nowak notes that:

During the meeting with the Special Rapporteur [ManfredNowak], he noted that he and his team were being heavilymonitored by intelligence officers with portable listening de-vices and cameras from an adjacent table. When he ap-proached them the three officers became irate .... "'

178. In Chinese, zuzhi zhengdun [re-adjustment and rectification].179. A Hu Jintao slogan, Bao chi gongchandangyuan xianjinxing ["Keep the ad-

vanced nature of the Communists"]. See http://www.china.com.cn/zhuanti2005/node_5752204.htm (last visited Feb. 1, 2007).

180. A Jiang Zemin slogan, Jiang xuexi, jiang zhengzhi, fiang zhengqi [EmphasizingLearning, Emphasizing Politics, Emphasizing Rectitude]. See http://news.xinhuanet.com/ziliao/2003-01/20/content 698043.htm (last visited Feb. 1, 2007).

181. See He Weifang, Lushi canyu quntixing anjian daili de wenti [Problems withRepresentation by Lawyers Involved in Mass Character Cases], June 14, 2006, http://www.ccwlawyer.com/center.asp?idd=628 (last visited Feb. 1, 2007).

182. For further descriptions, see Zhang Min, 7th Interview, supra note 124; ZhangMin, 9th Interview, supra note 141.

183. See Report of the Special Rapporteur, supra note 127, App. 3, 2.


Gao Zhisheng added that as they tried to take pictures of thespecial agents seeking to monitor their conversation, these"irate" agents actually complained that taking their picturesagainst their will was "seriously violating their human rights."The scene erupted in a verbal fight witnessed by other restaurantcustomers, which eventually prompted Nowak's and his early de-parture. 84

The rhetoric offered here by persons themselves apparentlyviolating others' rights on behalf of the government in this epi-sode could be regarded as a somewhat cynical distortion of thedevelopment toward "legality" described just above by one of therights defenders-a distortion still owing itself to the fact thatsuch a development is taking place.

There were other consequences. By August 2006, Gao hadnot only himself suffered several physical attacks. 8 5 There werealso the "costs" of rights-defending borne by people in his envi-ronment, especially by his family and by his friends and col-leagues. References to these consequences for others run like athread through the interviews conducted by the RFA journalistZhang Min, and through conversations with other lawyers.Thus, what upset Gao about the closure of his law firm was notso much the fact that the Party-state was "getting back" at him.But he did express himself shaken by the fact that his colleagueswere affected by the decision to suspend the law firm as a whole,rather than targeting him personally.186

Rights defenders will sometimes describe themselves asuniquely lonely: The moment, one of them said, one decided to

184. See Zhang Min, 3rd Interview, supra note 168.185. For a description of the last one, which apparently included an attack by a

special agent wielding a piece of concrete, see Ding Xiao, Gao Zhisheng bei bianyi oudajieshou ben tai zhuanfang [ Gao Zhisheng Gives an Interview After Having Been Roughed Up byPlainclothes Officers], July 31, 2006, RADIO FREE ASIA, http://www.rfa.org/mandarin/shenrubaodao/2006/07/31/gaozhisheng/ (last visited Feb. 1, 2007); see also Report ofthe Special Rapporteur, supra note 127, App. 3, 3. This triggered a public call by otherrights defenders to cease violence against Gao. See Lin Mu, Sun Wenguang, Yuan hongb-ing, Zhangjiankang & Yang Zaixin, Dui canhai Gao Lushi baoli xingwei de gongmin lianshukangyishu [Citizens Protest Violence Against Lawryer Gao], Aug.2, 2006, http://www.qian-ming.net/gb/default.aspx?dir=scp&cid=85 (last visited Feb. 1, 2007).

186. See Zhang Min, Gao Zhisheng lushi suifang lu (zhi yi)-ma bu ting ti-dedaolushishiwusuo bei tingye yi nian koutou tongzhi hou [ Gao Zhisheng Interview Series (no. 1)-TheHorse Keeps on Walking-After Being Orally Informed of One Year Suspension of Law Firm],Nov. 18, 2005, http://www.peacehall.com/news/gb/china/2005/11/200511180332.shtml (last visited Feb. 1, 2007).

2007] 1263

1264 FORDHAM17NTERNATIONALLAWJOURNAL [Vol. 30:1209

speak out against certain kinds of injustice - in the languageused in earlier sections of this Article, to break a pragmatic si-lence-the people "in one's back," meaning those normally sup-porting and co-operating with oneself, ceased to understandone. One was left with "no one to talk to," and most peoplewould find that very hard, or impossible, to bear.1 87 Even if theydid not become one's opponents, their being victimized be-comes a burden imposed on the rights defenders. Persons in-volved in this way included family, colleagues in one's law firmand other fellow lawyers, his family and neighbors in Shaanxi, aswell as the general public.

Moreover not just family and colleagues, but a lawyer's cli-ents, too, might be adversely affected by the lawyer's politicallysensitive "rights defender" status. A lawyer who had undertakenthe challenging task of representing a blind rights activist ac-cused of criminal offenses in the context of exposing rightsabuses to "implement" birth control, provided some insight intothis kind of situation. His special responsibility toward his client,this lawyer explained, made him view other activists' working onthis case with anxiety. Publicizing the case of his client by theseother activists and the media had turned him, he said, "into theenemy of Chinese officialdom as whole"; as a result, his chancesof getting a fair trial seemed worse than ever. The presence ofnumerous well-known political activists and rights defendersoutside the courthouse on the day his client was going to betried, all of them wearing T-shirts with a picture of his client, waswell-meant, he appreciated. But, of course, these lawyers and ac-tivists were going to be beaten by State officials or State-hiredthugs (they were) and turned away (they were), and would thatnot make it even more frightening for the already frightenedlocal witnesses expected to exonerate his client?"' Even if hisclient did not oppose such actions raising the profile of his case,how could the rights defenders engage in them? Rights defend-ers, he concluded bitterly, were "really the most selfish people of

187. Interview with Rights Defender #2, supra note 18.188. See Interview with Rights Defender #7, in Beijing, China (July 22, 2006) (on

file with author). Concerning the July 20, 2006 trip to Yinan country court that thisrelates to, see Ma Wendu, Yinan xian pangting Chen Guangcheng an jishi [Notes onthe Hearing of Chen Guangcheng in Yinan County], August 5, 2006, http://www.peacehall.com/news/gb/pubvp/2006/08/200608022128.shtml (last visited Feb. 1,2007).


all," because they put their own notions of justice and moralityabove everything else, and made others suffer for them." 9

The problems mentioned here are typical of the conflictingfelt obligations affecting people engaged in what is generallycalled "cause lawyering," of the conflicting desires, for instance,to promote a particular cause (such as popular rights awarenessor awareness of a particular type of abuses, with a view to eradi-cating them), and to help a particular client. In the Chinesecontext these conflicts seem to be especially deep and especiallynumerous. Thus, mere publicity for a case would in many demo-cratic or "post-authoritarian" settings not trigger the problem ofintimidating witnesses who, it should be added, moreover havethe option of not appearing in court if they so choose in China.The problem of State-hired thugs intimidating lawyers in politi-cally important (or "sensitive") cases, too, is not so usual formany other jurisdictions, but apparently becoming more usualfor China. Severe intimidation affecting a rights defender willaffect the rights defender's family all the more, too. In the caseof Gao Zhisheng, for instance, his thirteen-year old daughter wasreported to have been followed, always, on her way to school andback, and to have been occasionally verbally molested by the per-sons employed to follow her. From the moment the system de-cided to persecute Gao in earnest, the entire family led an anx-ious and, at times, unbearably restricted life. 19 °

One's responsibility to persons occupying these special rolesin one's life, it was noted earlier on, but especially to one's im-mediate family, might not be adequately defined by what couldbe called one's public rights and obligations. It seems instead tobe defined by the special relationship one had with them, espe-cially with one's children while they are minors. That relation-ship can be described as one of affection as well as moral obliga-tion. It is far removed, not only from considerations about one'srights in society, but also from considerations about constructingthe rule of law in a people of 1.3 billion. How do the rightsdefenders experience and handle these responsibilities? Is therereal conflict? How far any subjectively experienced conflict goes

189. See Interview with Rights Defender #7, supra note 188; see also Ma Wendu,supra note 188.

190. Regarding the daughter, see Report of the Special Rapporteur, supra note 127, atApp. 3, 2 and Interview with Rights Defender #2, supra note 18.

2007] 1265


will depend on the choices made (positions taken) by the per-sons close to the rights defenders. But such conflict, at least atan emotional level, seems unavoidable.

As was observed earlier on, to identify a conflict betweendifferent goals or values does not imply that the right way forresolving the conflict is to weigh up the different consequences aparticular course of action has in regard to these goals. It doesnot require that we think of the unwelcome consequences interms of a moral "cost" incurred to achieve the morally desiredconsequences. Even less are we required to think of rights activ-ism as catering to a mere personal preference, a kind of moraltaste one indulges in-but it must recognized that that, as just.mentioned, is how rights activism appears to some, for instanceto the lawyer acting on behalf of the blind activist. It is impor-tant, however, at least to recognize that there is a rational alter-native to this particular form of consequentialist thinking. Itconsists in assigning responsibility for particular consequencesnot according to the question of who caused them (orforeseeably caused them), but rather according to the questionof who intended them, and especially of whether one intendedthem oneself. However, much can be added to refine this sim-ple question, it is removed, by a principled distinction, from theprevious question of (mere) causation. From his own testimony,it is clear that Gao felt obligated to speak up against torture afterhe had met people whom he believed to have been subjected totorture of the worst kind; and this obligation seemed to hold nomatter what, even if it involved feelings of guilt toward personswho suffered as a consequence of his choosing to fulfill it.

And it seems noteworthy that just as one lawyer attributedthe actions of other activists to a kind of moral "selfishness," soother, more "radical" rights defenders will say that the differencebetween themselves and other rights defenders could "besummed up in one single character": "fear" (yi ge 'pa' zi)." Fearmade some of their friends and colleagues "calculate the costs"of their actions, and shrink back from breaking certain silenceswhich to break would be too "costly." What took away the fear ofthis rights defender, on his view, was a strong sense of moralobligation combined, perhaps, with a sense of religious mission.Speaking out against injustice "proved that we are still humans."It was necessary because at least "an historical record (of theabuses, and protest against them) had to be created." This

2007] ASKING THE TIGER FOR HIS SKIN 1267

rights defender added that the reason he was without fear washis new-found Christian (Protestant) faith.' 9 '

The debate around Lawyer Gao Zhisheng's action, and thevarious consequences it triggered for himself, his family, and-some have argued-for the fate of institutional legal reform inChina, should be understood against the background of thesecontrasting attitudes. It soon became clear that Gao's own atti-tude appeared extremely provocative to some, while admired byothers. In late January 2006, during a trip home to spend SpringFestival with his family, Gao Zhisheng discovered that while hiswife had been staunchly supporting him,1 92 family in his homevillage in Shaanxi were frightened into opposing him.193 On thistrip, he managed to elude the special agents.194 While there hewas rung up by the RFAjournalist Zhang Min for another inter-view. With some (nervous) amusement, he told her that hiswider family had suggested to his brothers to lock him up in acave, and that his brothers were now discussing this option.' 95

This would be done to prevent him from going on with his dan-gerous political activities, which, they thought, might endangerthe entire family or village, including of course Gao Zhishenghimself.'96 Gao Zhisheng's eldest brother Gao Zhiyi was there-

191. See Interview with Rights Defender #2, supra note 18.192. See Zhang Min, 3rd Interview, supra note 168; Interview with Rights Defender

#2, supra note 18.193. He went to Xiaoshibanqiao Village in Hulu Township, Yulinjia County,

Shaanxi Province, where members of his family live in a row of yaodong caves. SeeZhang Min, 7th Interview, supra note 124.

194. See id. When Gao Zhisheng returned to his home village in April, apart fromhis friend and colleague, Ma Wendu, several special agents followed him. Their con-duct, according to Gao Zhisheng, further disturbed and frightened the villagers. Hesaid that the agents parked their car(s) in front of his family's dwellings, and made theirpresence as disagreeable as possible. Among other things, he said, they pointed electrictorches through the women's yaodong window at night, and made a lot of noise, notallowing them to sleep. They urinated and defecated right in front of his family, hesaid, and used threatening and insulting language. See Interview with Rights Defender#2, supra note 18.

195. In that part of Shaanxi many families live in yaodong caves either dug into thehilly landscape, or constructed from mud bricks, traditionally with wooden fronts andkang brick beds. The following translation of the conversation is based on a transcriptand on the MP3-audio file available online. In this particular instance, the audio fileand the transcript diverge rather often because the journalist, for the benefit of herPutonghua-speaking audience, repeated many things said by Gao Zhisheng's brother,who speaks with a thick Shaanxi accent; these repetitions were left out in the transcript.The transcript was used in cases of divergence.

196. 8th interview with Zhang Min, The Journey Home, http://www.rfa.org/


upon interviewed by the startled Zhang Min, the Radio Free Asia

journalist in Washington, D.C., over the phone. 197 The first

thing he told her, defensively, was that he was "a peasant, work-ing in the fields," who "understood nothing." Then he ex-plained that the village was:

A: Telling him [Gao Zhisheng] not to make trouble. Not topick a fight with the Communist Party.

Q: Do you know what precisely he's been doing? Is whathe's doing bad or good?

A: Well, that depends what way you look at it. Basically, it isnot bad. But we can't tolerate such a thing, we fear it isnot safe! How can his brothers and family not worry?

Q: And what do you tell him to make him change his mind?A: "You will get yourself locked up [literally, cause yourself

to lose your freedom.] Aren't you just making trouble?"Q: Do all the family talk like that to him?A: I am sure they all take this view.Q: Is there anyone who thinks differently?A: No one. We are all agreed. We are planning to lock him

up. We won't let him go.Q: Would you really do that?A: We have all planned it out already; we have found a place

and we won't let him go, not on any account!' 98

Q: For how long will you not let him go?A: He can go around in the village, now. We're just not let-

ting him go anywhere else.Q: And what do the cadres in the village say?A: There are no cadres in the village. Just a couple of vil-

lage elders.Q: Have you not been put under pressure by someone?A: At any rate we always feel .... The police has already

investigated us, how could we be looking for still moretrouble? We're not letting him go after Spring Festival.

Q: Doesn't that mean that he can't continue his work?A: I don't know about that.Q: How many people have decided not to let him go?A: Oh dear, not a few. The entire family, especially us

brothers.Q: Didn't someone come and talk to you before this?

mandarin/other/2006/02/O1/gaozhisheng/ (last visited May 22, 2007) [hereinafter8th Interview, The Journey Home].

197. Id.198. Bu fiao ta zou le, yao laoming ye bu jiao ta zou lei. Id.


A: The police checked our household registrations. Intothe third generation they checked up on us. He canhave the phone. We just won't let him go.199

Gao Zhisheng himself had explained to the journalist that hisbrothers' plan involved taking his mobile phone away, and find-ing someone familiar with computers, who was to put a commu-nication online. This communication indicated that GaoZhisheng had decided to retreat into the bosom of his familyand that the family desired no further interaction with any-one.

200

Perhaps noticing Gao Zhiyi's agitation, the journaliststeered the conversation away from the subject of his brother, tothe impending Spring Festival. Then she asked a question aboutGao Zhiyi's and Gao Zhisheng's recently deceased mother.

A: My mother was a very kind person. And she also had noeducation.20 1 Anyone who came in contact with her saidshe was a very good person. They said she had the heartof a Pusa [Boddhisatva].

Q: Why did they say she had the heart of a Pusa?A: She upheld morality. She never inconvenienced anyone,

and took responsibility for everything. 20 2 Therefore theyounger generation respected her very much.

Q: So now Lawyer Gao is back, when you talk to him to per-suade him [not to go on with his rights defense activi-ties], how does he respond?

A: He doesn't talk. He just doesn't interact.Q: What do you say to him?A: We tell him he should listen to the Party and go with the

Party. And that he should not "pick fights" with theCommunist Party.

Q: Do you know in what way he is "picking fights" with theParty?

A: I don't know. The Communist Party is pretty evil.2 ° 3

They would do anything.Q: And who has told you that Gao Zhisheng is "fighting"

with the Communist Party?A: The police did not come to us. They came to people in

199. Cha zuzong san dai. Id.200. Id.201. Gao Zhiyi has just told her that he never went to school. See id.202. Zhuchi gongdao, bu zhan bie ren de bianyi, dui suoyou de shi dou shi ziji chikui. Id.203. Gou hei. Id.

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our village. So of course we would be hearing a couple ofthings. But they didn't come to me personally. Theyjustinvestigated indirectly.

20 4

Q: So who told you, then?A: Whoever they investigated indirectly, that's who told us.

Remarkably, this conversation reflects a notion that the vil-lage, the family, or clan, the zongzu, can decide to lock someoneup, without even having to use deception toward its prospectivevictim. The very openness of the discussion of this topic, whichbaffled the Washington journalist, indicates that a decision tosubject Gao to this kind of village "house arrest" would have car-ried the authority of a courtjudgment. It is also clear that in themind of Gao Zhiyi, detaining his (incomprehensibly activist) law-yer brother for the sake of the safety of the community, the fam-ily, and for his, Gao Zhisheng's, own safety, would have beenright. The reasons cited by Gao Zhiyi are a fear of reprisalsagainst Gao Zhisheng and the family, but also, as indicated in hisreference to their mother, the importance of "not inconvenienc-ing" others and "taking responsibility"-hence the formulation,which he says is used toward his brother by the family, that youwill cause yourself to lose your freedom.2 °5

No less plainly, the conversation shows a local community infear of the ruling Party-State, however distant its actual repre-sentatives. Even though clearly Gao Zhisheng's brother is notwilling to disclose everything, some intimidating moves by Party-State officials (the police) have been made, and the villagershave decided that it is too dangerous to allow their urbanizedlawyer member to continue with his activism for far-off otherChinese citizens. In Gao Zhisheng's view, the most importantreason why the villagers were opposed to his "picking fights" withthe Party was that as peasants, they had experience of arbitraryrule, at a different level from most urban residents.

Zhang Min's conversation with Gao's brother may also re-mind us of the pragmatist acceptance of political facts advocatedby Zhu Suli. Zhu Suli2°6 admonishes his Chinese readership topay heed to the brute facts of power distribution, saying that "itdoesn't matter whether you oppose [the Party], you cannot deny

204. Ce mian diaocha. Id.205. Shi ziji bu ziyou. Id.206. Zhu Suli, supra note 32.


it. '"207 He leaves it deliberately open whether one should opposeor endorse the Party, or Communism, or any other ideology itmay stand for, and argues that such endorsement or rejection isin an important way irrelevant. By contrast, Gao Zhisheng'sbrother Gao Zhiyi Gao Zhiyi remarks that the Party is "prettyevil" (gou hei) but that nevertheless the family are hoping that hisbrother will "listen to the Party and go with the Party." His atti-tude could be described as "pragmatic" in a more colloquialsense-he is not prepared to characterize his brother's opposi-tion to the Party as wrong, but simply observes that it is not"safe." He cites his fear of the Party as a reason for obeying it.He insists, ultimately, on the need to protect oneself and one'speople, and therefore to be submissive in what he perceives tobe conditions of arbitrary rule and lawlessness.

In the end, Gao says, he "escaped" from his home village,and from the yaodong cave awaiting him, by means of a ruse: hepretended that he and his friend Ma Wendu were merely goingfor a visit nearby the day he left to go back to Beijing, and calledhis family later en route to tell them that he was not comingback.2"' The decision to announce a "relay hunger strike" wasmade in Beijing. The relay hunger strike began on February 4,2006, as mentioned in the preceding section of this Article. Itwas supported by a number of prominent rights activists and aca-demics, but back in Beijing, Gao was also vehemently opposed byother rights activists and government critics.

VIII. "POLITICIZATION"

Criticism came most prominently from "TiananmenMother" Ding Zilin, an academic at Renmin University whoseteenage son had been killed in the Tiananmen massacre on June4, 1989. For many years she has been vocal in claiming justice inthese cases, compensation, as well as an official reassessment ofthe "Tiananmen incident." Her criticism was important, becauseshe derived authority from her suffering and her courageous ef-forts to seek justice for many years. She also articulated mostacutely and directly what many felt was the problem with GaoZhisheng's actions, by warning him not to "become political,"not to trigger another disaster like Tiananmen, and by implor-

207. Id.208. See Zhang Min, 9th Interview, supra note 141.

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ing him to keep to "the original professional task" of a lawyer.The following is an excerpt from her open letter, which was writ-ten on February 23, 2006, and placed on the internet (it reachedGao through a friend reading it out to him over a phone) .209

Although we are not acquainted I decided to take the libertyof writing to you. I have thought about this letter for manydays. Every day when I saw the news regarding your "hungerstrike to oppose persecution" I felt unhappy. It was as thoughI returned to the time sixteen years ago, a time of no appetiteand no peace, that time when day and night the ambulancesfor hunger-striking students were passing to and fro betweenTiananmen and all the larger hospitals with their sirens, eachsound went right through me and made it hard for me to becalm. Later the government's army moved into the city and,using armed force, brutally killed many peaceful residents, in-cluding my seventeen-year-old son. The shock of this experi-ence was too great for me. My abhorrence of this evil govern-ment is a hundred times as deep as yours; my craving for afree China is a hundred times as strong as yours; and my sym-pathy for the weak and persecuted in our society cannot beany smaller than yours. I know the cruelty of this governmentvery well and I feel the suffering and persecution you andyour friends have experienced as though they had happenedto my own body, because I have come the same way as yousince the 90s of the last century. But even so, I want to per-suade you to stop the hunger strike because I don't knowwhat will happen if you persevere with it. What is the point ofacting like a fish which dies trying to break through the net!Have you thought about this? In case something like the ca-lamity of sixteen years ago happens again, how are we goingto face the mothers and wives of the victims?

Mr. Gao Zhisheng, you are a lawyer, a great rights protec-tion lawyer. There are by no means too many lawyers like thisin China at present; there are indeed too few of them. I donot believe that this kind of hunger strike movement canachieve its goal of rights protection for the common people, I

209. See Gao Zhisheng, Gao Zhisheng guanyu Ding Zilin nushi gongkaixin de huiying[Gao Zhisheng's Answer to Ding Zilin's Open Letter], Epoch Times, FEB. 24, 2006, http://www.epochtimes.com/gb/6/2/24/n236006.htm (last visited Apr. 16, 2007). For anEnglish translation, see Gao Zhisheng, Attorney Gao's Response to Ms. Ding Zilin's OpenLetter, EPOCH TIMES, Feb. 27, 2006, http://en.epochtimes.com/news/6-2-27/38731.html (last visited Apr. 16, 2007). This response to Ding Zilin's letter was also dictatedover the phone.


only believe that every case of fights infringement must ulti-mately be resolved through the techniques of the law. There-fore, I find it hard to understand why you so light-heartedlyabandoned your profession as a lawyer to engage in politicalactivities. I feel that you have mixed up rights protection withpolitical activities. In my view, a politicized method of rightsprotection ought not to be adopted. It might result in hardlybearable dangers to the people engaged in rights activism,and you yourself would only be distancing yourself furtherand further from those masses at the lowest stratum [of soci-ety] who need your help. You say that you are acting the wayyou do in order to "reduce" the "moral decline and "shame"of the "rights protection heroes." But in my view, those hon-orable lawyers who bring all their intelligence and wisdom tobear in their proper work as lawyers, and wholeheartedlythrow themselves into [work on] every individual case ofrights protection, deserve general admiration. Sometimesperhaps they may not be successful; but at least they contrib-ute a few bricks and tiles to the process of the construction ofrule of law. A concrete rights protection activity on the partof the honorable lawyers will be a wonderful triumph of pub-licity for awakening people's legal consciousness and rightsconsciousness. From a long term perspective, a people whichlacks in respect for the law has no future .... 210

Ding tries to offer an alternative to hunger-striking. The alterna-tive is that of "pragmatic" and constructive reform work, evokedby Ding's metaphor of "bricks and tiles" contributed to the con-struction of rule of law. The real force of Ding's letter does notcome from the persuasiveness of alternatives, however, nor frompointing out that Gao himself might perish, or that his effortsmight in some other way be unsuccessful. It comes, rather, fromthe attribution of hypothetical responsibility for "another calam-ity" like Tiananmen; her somewhat vague sentiment, "how are wegoing to face the mothers and wives and sisters (and fathers andhusbands, one might add) of the victims" is really directed toGao.

This could remind us of the positions characterized as con-sequentialist in an earlier section of this Article. Consequential-

210. Ding Zilin, Ding Zilin zhi Gao Zhishenggongkaixin: qing huidao weiquan de hangliezhong lai [Open Letter from Ding Zilin to Gao Zhisheng: Please Return to the Job of Rights-Defending], Feb. 23, 2006, http://peacehall.com/news/gb/china/2006/02/200602232225.shtml (last visited Feb. 1, 2007).

2007] 1273

1274 FORDHAMINTERNATIONALLAWJOURVAL [Vol. 30:1209

ist ascriptions of responsibility can be negative or indirect. On aconsequentialist reading Gao's hunger-strike could make him re-sponsible for any violent consequences (such as people beinglocked up, beaten, or killed) if things escalated. Although shedoes not (for whatever reason) mention it, informed readers ofthe letter will know that at the time of writing such consequenceshad already resulted from the inception of the hunger-strike,and more were to follow. But, of course, not all actual and possi-ble consequences would implicate Gao in this way. We remem-ber that the attribution of responsibility would only be successfulin a consequentialist sense if the bad consequences were not out-weighed by good consequences and if he had some ability to pre-vent them. The implication in what Ding Zilin says, on a conse-quentialist reading, is that both might be the case.

Beyond hypothetically ascribing responsibility, Ding alsoconstrues an image of the legal profession, which reflects legalreform pragmatism; yet rather than changing the institutions ofthe Party-State (in which she, like Gao Zhisheng, appears to putlittle hope) she advocates changing (educating) the public mindabout law. In a consequentialist move, she shifts attention fromthe actions of rights defenders, to an ultimate state of affairs tobe attained or, in her words, "constructed." Professional respon-sibility, it turns out, must also be understood on consequentialistterms and is therefore related to what can be made intelligible interms of "constructing" the rule of law regime of the future.Ding Zilin infers from the consequence of illegal political op-pression that to demand basic rights for the "politically" perse-cuted is un-lawyerly, even though she explicitly endorses GaoZhisheng's right to express his concern for persecutedFalungong members. But, put shortly, the Falungong adherentsshould wait until the system has got better.

In the internet discussion of this subject, but perhaps evenmore in unpublicized discussions, Ding Zilin won strong supportfor her criticisms. Some of those supporting her went furtherthan she did in criticizing Gao. Others supported her, but didnot voice direct criticism in public. Prominent activists and aca-demics published open letters entitled, for instance: "Why I amnot hunger-striking." '211 Stainless Steel Mouse, the author of thisparticular open letter, rejected Ding Zilin's, in her view, far too

211. Liu Di (Pseudonym, Bu xiugang laoshu, [Stainless Steel Mouse]), Wo wei


direct connection between hunger-striking and deaths predictedby Ding Zilin. In other words, she was skeptical about the attri-bution of negative responsibility. But she viewed the movementas pointless for herself, partly because of the peculiarities de-scribed earlier on, its vagueness, and partly because of her ownpersonal "weakness." She thought that the "rights defense hun-ger strike movement" can only have meaning if it substitutesnon-violence for violence as an actual "possibility."

Gandhi thought that non-violent action was not a "choice ofthe weak in a situation of no alternative choices." Instead, itwas a free decision of the strong "rather to suffer harm them-selves, than to inflict harm on others." In other words, onlywhen it is possible for someone to use violent means of resis-tance, will his choice of non-violent means carry meaning.Therefore I think that if gentlemen like Wu Yiran choosehunger-striking and other non-violent forms of action, this ismeaningful, but if someone as weak as a mouse does thesame, then it will inevitably look like a child refusing to eat toannoy his parents, or like a young girl being restricted by herparents and feeling that since she cannot control her ownlife, all she can control is whether or not she eats; her ownbody-ultimately, this will always lead to nervous anorexia.This is the main reason why I am not hunger-striking: I per-sonally have no way of distinguishing it from nervous an-orexia.

2 1 2

Stainless Steel Mouse remains attached to the (pragmatist) ideaof effectiveness as a necessary attribute of politically meaningfulaction, somewhat differently from Havel, whose influence onsome of the rights defenders was mentioned earlier on. She alsorejects what appears to be behind much of Gandhi's ideas,namely the thought that anyone could choose to view themselvesas politically powerful just by virtue of membership in a politicalcommunity-"indigent" immaturity and resignation before au-thority appear to have been the very things Gandhi meant tochallenge. But, then again, Gandhi's activism occurred in a con-text very notably different from the Chinese context.

There were also many who supported the movement. 213

shenme bu jueshi [Why I am Not Hunger-striking], BoxuN, Feb. 27, 2006, http://www.peacehall.com/news/gb/china/2006/02/200602270330.shtml (Feb. 1, 2007).

212. Id.213. See, e.g., Tan Baigiiao, Gao Zhisheng jijin ma? [Is Gao Zhisheng Radical?],

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Given the media situation, it might be surmised that it was easierfor supporters of Gao than for his critics to get their views pub-lished in overseas Chinese language fora,21 4 whereas the entiresubject was out of bounds in mainland discussion fora and themedia, whether or not one was critical of the "Rights DefenseHunger Strike Movement."

The specific criticisms varied, but they all related to DingZilin's basic two standpoints: a consequentialist conception ofresponsibility, and a conception of law opposed to its "politiciza-tion." Thus a friend, fellow-lawyer and publicist, Liu Lu (penname for Li Jianqiang) ,21'5 now criticizing Gao Zhisheng and hissupporters, said that hunger-striking and rights-defending weretwo completely different things, and that "of course" the hunger-strike initiated by Gao Zhisheng was not conducted for the pur-pose of rights protection. A very interesting aspect of this formof argument is that it plays on the meaning of quan as both"rights" and "power," and that it relates to the need to make op-timistic assumptions and engage in strategic pretences about thefunctioning of available legal procedures.

Liu: The protection of rights (wei quan) isjust the protectionof legal rights (weihu faquan). If in communications aboutrights protection you insult the government, you are actinglike a rogue. To deny the legality of the government at itsmost basic means to deny the government as well as the lawprotecting and constituting that government; so what kind ofright (quan) are you then still protecting? It almost amountsto fighting for power (zheng quan) or grasping power (duoquan). I believe that this rights protection hunger-strikemovement is in reality a political demonstration; especiallysince overseas all [kinds of] political forces have separately

Feb. 25, 2006, http://www.peacehall.com/news/gb/pubvp/2006/02/200602251250.shtml (last visited Feb. 1, 2007); Yuan Hongbing, Wei Gao Zhisheng bian [In Defense ofGao Zhisheng], Feb. 24, 2006, http://www.peacehall.com/news/gb/pubvp/2006/02/200602242309 (last visited Feb. 1, 2007).

214. Radio Free Asia reported about the controversy and Boxun posted some criti-cisms, for instance Ding Zilin's open letter, whereas Epoch Times did not.

215. For his personal blog, see Li Jianqiang (pseudonym, Liu Lu), http://www.boxun.com/hero/liulu (last visited Apr. 24, 2007). In December 2005, Liu Lu wroteone of the various articles analyzing and protesting the closure of Gao Zhisheng's lawfirm. See Lu Lu, Yu bu ke ji de caijue-wo kan Beijing sifaju cajueshu [A Resolution ThatCould Not Be More Stupid-My View of the BeijingJustice Bureau's Resolution], Dec. 3, 2005,http://www.peacehall.com/news/gb/china/2005/12/200512032258.shtml (last visitedFeb. 1, 2007).


joined in and blown the matter up this peculiarity has be-come even more obvious.Ying: But recently the government in many places in Chinahas become entirely mafia-like, it has brutally beaten uprights defenders and dissidents and put them under soft sur-veillance. This had no appearance of rule of law at all. If thegovernment starts with destroying the rule of law, do not theordinary people have the right to oppose this/resist by hun-ger-striking?Liu: Of course they have the right to resist/oppose and todemonstrate but you should call that opposition/resistanceand demonstration, not rights-defending.Ying: I am not sure if I can follow you; I would still like to ask,what's wrong with calling it rights-defending? Let it be termi-nologically incorrect; would that not be a semantic question?And we are not discussing semantics here.Liu: The problem is of course not as simple as that. InChina, rights-defending has a specially constituted meaningand clear boundaries, if these are exceeded then the expres-sion "rights-defending" may become as dangerous as "popu-lar movement" and "Taiwan independence."Ying: And what is the boundary of rights-defending?Liu: The law. What is defended by "rights-defending" are thelegal rights of the ordinary people, their real and concreteinterests. That is why rights-defending is a form of conduct inaccordance with law. Rights-defending is subject to a stan-dard, contained in the paragraphs of the law. The centraland local government cannot, at least not in theory, deny thelegitimizing value of the rights-defense movement, because itis in accordance with law. And just because this is so, rights-defending must take the law as its boundary. Once it exceedsthis boundary, it has lost its legal justification. Then it be-comes an object of repression by the government. That is[rights-defending at] the first level.

At the second level, rights-defending does not necessarilycomply with all the legal requirements, but that certainly doesnot mean that rights-defending can be [entirely] against thelaw. In cases at this level, what rights-defending accords withis a higher-ranking law. It is what we often refer to as naturallaw, that is, the concept of justice and public fairness. Takefor instance the civil disobedience movement. At that level,rights-defending is targeting bad laws in violation of the natu-ral law and the evil institutions protected and constituted bythese bad laws, for instance the institution of "Custody and

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Repatriation" [the system targeted after the "Sun Zhigang in-cident" discussed above]. But this kind of rights-defendingstill has clear boundaries, that is: peacefulness, rationality,and non-violence.

What should be emphasized is that these two levels ofrights-defending must be clearly distinguished. At differentstages, different options must be chosen and different groupsof people must engage in these. 2 16 They must not be mixedup.

2 1 7

So justice may be invoked as higher law, but not, it appears,by everybody, and only on certain occasions. It should not, ac-cording to Liu Lu, be invoked by means of a popular movement.

Very interestingly, the supposed boundaries of the use ofthe term rights-defending are themselves elevated into the statusof law. Perhaps without realizing it, Liu Lu is advocating a si-lence that benefits no one clearly, without being clearly requiredby law. There is-as yet-no written, certainly no statutory lawsetting out, for instance, that it would be alright to discuss theconstitutionality of Re-education through Labor at an academicconference, whereas it would not be alright to write about it inSouthern Weekend. There are commands and directives, such asthose issued by the Central Propaganda Department; but thesedo not reach the level of statutory law and restrictions are oftenimposed on pieces already written when they do not pass thepropaganda department approval process. Pragmatic silencessuch as the one described above are often the result of anticipa-tion and guesswork, or of indirect and secret instructions.

Liu Lu's comment suggests, however, that he found somecomfort in thinking of these restrictions as "law" rather thanmere arbitrary imposition. It is difficult not to consider this anal-ysis self-deceptive, most importantly because Liu Lu never dis-

216. Above it was concluded that a procedure allowing for unconstitutionality re-view requests as a matter of right by ordinary people would directly contradict the prin-ciple of democratic centralism and the mass line, because it would contradict the prin-ciple requiring that decisions, once taken, be followed.

217. Ying Chunzi, Liu Lu jiu jueshi shijian fangtan lu, [Interview with Liu Lu on theHunger-strike], Feb. 28, 2006, http://peacehall.com/news/gb/china/2006/02/200602280026.shtml (last visited Feb. 1, 2007); see also Liu Lu, Yi ge ge'an shan huo zhe de lingyunba qi-Yuan Hongbing "wei Gao Zhisheng bian" [The reckless remarks of an inflammatorytrouble-maker-Yuan Hongbing's "defence of Gao Zhisheng"], Feb. 25, 2006, http://www.peacehall.com/news/gb/pubvp/2006/02/200602252004.shtml (last visited Feb. 1,2007).


cusses how, precisely, "the boundaries of law" are exceeded bynot eating for a day or by writing about this experience.218 LiuLu's argument can be understood better if we supplement it by aconsequentialist consideration implicit in Liu's reference to the"danger" inherent to the use of certain words. What he reallysays here (similar to Ding Zilin) is that it would be wrong to cre-ate a popular constitutional rights movement, because of thebacklash it would provoke. In his terminology, such a movementwould inappropriately try to reach up from the first level ofrights assertion to the second. The legal profession and intellec-tual elite may pose some legal-even constitutional and politicalchallenges, he suggests; but if they associate with the "ordinary"people and create a popular movement invoking the concept ofrights, the government may no longer be persuaded that pro-tecting legal rights is good for it. Creating such a popular move-ment would therefore be wrong on consequential grounds; itwould be wrong not for the reasons which Liu Lu gives, but forreasons he obfuscates by semantic arguments.

If the consequentialist attribution of responsibility to "radi-cal" rights activists is wrong and if Ding Zilin and Liu Lu areunconvincing in their argument that there is an inherent qualityof law which prohibits rights assertion by "popular movement,"

the constructivist picture of bricks and tiles used by Ding Zilinmay also turn out to be misleading. In the worst case, the "ruleof law" being built in China would become a mere facade, if itdid not offer any-not even the most basic-protection to somepeople, like Falungong adherents or certain Christian believers.A former P.R.C. law professor now based in Australia, supportingGao Zhisheng in this controversy, puts this problem as follows:His argument, questionably, negates the rhetoric of legal reformas a new beginning in 1979, and makes sweeping reference to ahalf-century of Communist Party rule. He argues that:

According to the spirit of legality now universally recognizedby mankind, what is called "good law" is a legal system basedon democratic politics. "Bad law," by contrast, is the systemsupporting the current authoritarian regime. And the law of

218. Liu Lu might cite such prohibitions of the criminal law as that on "plotting tosubvert state power," for instance; but such a reference might only make it clearer thatthe participants of the strike have not violated criminal law. Shandong bianfu guojiazhengquan zui. See Criminal Law of the People's Republic of China art. 105 (promul-gated by the National People's Congress on July 1, 1979, revised Mar. 14, 1997).

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violent Communist Party politics, is the cruelest law based onthe mechanisms of autocracy. The Communist Party hassince coming into power used the law for a period of fifty-sixyears to slaughter innumerable people in the name of thislaw219 injured innumerable people, put innumerable peopleunder surveillance.... Therefore, if you want the people toput trust in this kind of legal system when they defend theirrights, to put trust in this kind of bad law, that really is likewanting them "to ask the tiger for his skin." ( . . . )

Journalist: In the letter [by Ding Zilin], it was also saidthat for all interest groups in society this was a vitally impor-tant phase, so it was important to keep to the rules of thegame and not to "play with guns and fool around with sticks."Is there a misunderstanding of the rights protection move-ment?

Yuan Hongbing: First of all I feel that this sort of talk ismisleading. What interest groups? What vital phase? Whatrules of the game? The crucial point right now is that therules of the game as prescribed by the violent political regimeof the Chinese Communist Party deprive people of theirhuman rights, of their basic rights, and they protect the "tenthousand families" at the top stratum of society; they follow arule of protecting the interests of the powerful elite. The cru-cial point is that we should not respect such rules of thegame.

Moreover, regarding these so-called vital interests, underthe violent political regime of the Chinese Communist Partythere are only the interests of corrupt officials [to protect],what interests of ordinary people are there to protect? Ninehundred million peasants have to this day all been excludedfrom the social welfare system; ninety million peasant migrantworkers can only earn one US dollar a day; what interests dothey have that would be vital to protect?220

Though enraged and inaccurate, Yuan Hongbing appears tohave a point. If law protects only some but not others in society itseems less worth having than if it protected all. A legal system

219. This seems inappropriate given that during the Cultural Revolution the Partywas explicitly denouncing the idea of law and embracing lawlessness. See Xinhua News,Completely Smash the Feudal, Capitalist, and Revisionist Legal System (1968), translated in 2CHINESE L. & Gov'T 7 (1969-1970).

220. Interview with Yuan Hongbing, Feb. 25, 2006, http://xinsheng.net/xs/articles/gb/2006/2/25/36002.htm (last visited Feb. 1, 2007); see also Yuan Hongbing, supranote 213.


entrenching inequality could ultimately become a victim of itsown partial success if there were more social crisis (instigated,inevitably, not by those most oppressed, but by those who aredisadvantaged yet still able to protest). People in the intellectualor material elite might conceivably be reluctant to consider howunfairly the peasants, the peasant migrant workers, and severaldisadvantaged minorities are being treated, partly through theoperation of the law (in the thin sense of law under democraticcentralism), and partly due to law's significant absence from ru-ral areas and other spheres of socially inferior life in China.

This must prompt us to reconsider the reproach ofpoliticization in the arguments described above. Even if there isa reasonable way of separating "political" from "legal" work, orof separating legal from political argument and decision-making,it is hard to understand "politicization" as a valid reproach whenthe legal system lawyers seek to apply has itself ceased to makesense, from their perspective, and they engage in simple criti-cism of that system, or seek to challenge rules and commands onthe grounds of their patent illegality.

We must also keep in mind that even in relatively coherent,stable and liberal legal systems, breaking a law can be an ethi-cally right choice. Can it, paradoxically, be demanded that Chi-nese rights defenders refrain from similar choices, because offi-cials of the Chinese Party-State would like to impose an authori-tarian conception of what counts as legal? Indeed, there areofficial attempts to define legality narrowly. The already men-tioned new Guiding Opinion of the All China Lawyers AssociationRegarding Lawyers Handling Cases of a Mass Nature22 is an exam-ple of this trend. It uses the categories of "cases of a mass na-ture" and of "sensitive ' 222 cases to restrain lawyers. Its effectcould be described as government-induced "politicization" ofthe work of lawyers223 quite possibly based on a perception of

221. See Guiding Opinion, supra note 176.222. For discussion on the differentiation between the political and the non-politi-

cal, as well as the conclusion that some cases are far from being "politicized" by lawyers,

and are originally political in nature, see Interview with Rights Defender #5, supra note113.

223. Gao countered the argument by Ding Zilin by pointing out that under pre-sent conditions, it was up to the Party-state to decide what could be repressed as "politi-cal" at will, and that this would only be political views and actions opposed to itself. Butpolitics, he said, should by itself be a public matter (and hence be open to debate). SeeGao Zhisheng's Answer to Ding Zilin's Open Letter, supra note 209.

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lawyers' success in challenging Party-State authorities on behalfof their clients. 224

"Politicization" captures also the process which has beenpushing a few people originally at the centre of institutionalizedlegal professions, such as lawyers and academics, to the edgeswhere they have encountered political dissidents and activists,and where they are now liaising with peasants and other mem-bers of the new underclass, actively forming associations and as-semblies, 2 25 and communicating information abroad. At theseedges, some legal professionals have taken what would appear tobe the logical next steps from the conclusion that the P.R.C.Constitution and the legal system under it, as they are now, aredysfunctional. By doing so, they at least superficially intensifiedthe tensions with more cautious reformers also committed toconstitutional constraints on government and rights protection.In May 2006, Gao Zhisheng and Yuan Hongbing published ajoint proposal for amending the Constitution. 226 Their principalproposed "amendment" was to throw out Party leadership andguidance by the principles of Marxism-Leninism, Mao ZedongThought, and the Three Represents. 2 7

In mid-June, Professor He Weifang, commenting on the re-cently imposed restrictions on lawyers, 228 observed:

But personally I have a worry-namely, the recent large-scalereadjustment imposed on the lawyers is not without cause.Some lawyers did things which scared the government, or

224. By contrast, in a conversation in July 2006, a criminal defense lawyer statedthat the draft version of the Guiding Opinion, Law on Handling Sudden Incidents, and theSocialist Legal System education campaign were all direct consequences of the "RelayRights Defense Hunger Strike Movement." Interview with Expert Lawyer, supra note177.

225. To give an example for the description of such a process, Fan Yafeng ofCASS's Legal Studies Institute and Li Baiguang, a lawyer and "rights defender," traveledto Taizhou in Zhejiang province to observe (and advise on) the formation of a LandlessPeasant Association (in the course of formation). See Yan Zhengxue, Fan Yafeng, LiBaiguang Zhongguo Taizhou zaoyu hongse taifeng [Li Baiguang Encountered Red Typhoon inTaizhou], Aug. 11, 2006, http://peacehall.com/news/gb/china/2006/08/200608111113.shtml (last visited Feb. 1, 2007).

226. See Gao Zhisheng & Yuan Hongbing, Xiugai xianfa weihu jiben renquanxuanyan [Call for Amending the Constitution to Protect Basic Rights], May 19, 2006,http://boxun.com/hero/2006/gzs/64_2.shtml (last visited Feb. 1, 2007). This propo-sal as downloaded bears the names of over fifty people, self-described as human rightsactivists, rights defense lawyers, journalists, and others.

227. See id.228. See He Weifang, supra note 181.


they used some not very appropriate methods to carry outrights-defending activities. Actually, personally I have verygreat respect for such lawyers; but should we not think of aneven better method, a more appropriate method to pursuejustice-I am not really sure how to express it. At the time,when Hu Shih, Mao Zishui and others were calling for a morereasonable way of realizing freedom of speech, they quoted asentence from the Book of Rites: "Strive for honesty/genuine-ness in your feelings and for cleverness in your expres-sion."229 When Mao Zishui talked about cleverness in this

context he did not mean cleverness as in "flattering andclever speech." What he meant was just that you should talkso that people are able to listen and take in what you say. Itshould not be just third persons able to see that your criticismmakes sense, but those criticized should also be able to seethe fairness of the criticism, they should be able to take it in.Today, compared with thirty or forty years ago, our room forfreedom of expression has already increased greatly. And oursystem - although it is still not fully satisfactory in many ways,we are now gradually progressing toward rule of law. At sucha time, those of us who are pursuing the rule of law shouldabove all take care that our speech and action has a kind offriendly resoluteness, or a kind of resolute friendliness. Weshould not make a one-off show of strength; we must notthrough one overly enthusiastic action lose the entire re-form.

230

This reflection by an academic who had three months earlierhimself severely criticized one-party rule and expressed hopesfor a Party split in the future2 3 1 suggests that some of the differ-ences amongst those whom He Weifang characterizes as "pursu-ing the rule of law" are grounded in their different experiences,rather than in different goals.

Having talked about amending the existent Constitution inMay, Gao Zhisheng and some people around him announcedthe drafting of a new "Constitution for a Future China," in Au-gust 2006. Gao remarked that it would be important in such aConstitution to manage to restrain political power, and not"again to fall into the error of emphasizing that China was 'spe-cial."' The website created for debating the new Constitution

229. Qing yu xin, ci yu qiao.230. He Weifang, supra note 181.231. See supra note 34 and accompanying text.

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soon contained postings discussing a multi-party system, federal-ism, etc. 23 2 Gao also said that the Constitution, which he associ-ated with the "contours" of a future China, would be drafted "forwhenever it was needed. 233

Although neither side might agree, it appears importantthat there is in effect so much communication between reformistand more radical critics. To a degree that would have appearedunimaginable ten years ago, persons working "within" the sys-tem, as ordinary lawyers and academics and-it may besurmised-officials, can be informed about the legal and politi-cal challenges formulated by more radical critics on the edges ofthe system. These critics, moreover, consist in part of profes-sional lawyers, technical experts with experience in legal practicewho, as this Article hopes to demonstrate, initially tried to takethe legal system as it is seriously and to reform it "from within."The discussion among the "radical" ones of the rights defenders,freer and more daring, can be expected to exert influence backon the more cautious rights defenders, and on people estab-lished in state and academic institutions, even if such influenceis unacknowledged.

One rather more cautious lawyer, who was highly critical ofGao Zhisheng, observed in a conversation that the Party-Statecould, at any point, decide to strike harder.2 "' "And if he goestoo far, all he will achieve is being locked up. Then who willhave heard of Gao Zhisheng?"

But when Gao Zhisheng was abducted from his sister'shome only about two weeks later,235 that lawyer was among the

232. See, e.g, Zhonghua lianbangguo xianfa [Chinese Federal Constitution],http://bbs.futurechinaforum.org/viewtopic.php?t=933 (last visited Feb. 1, 2007); Post-ing of FanrenJianyi yinjin zhengdangjingzhengjizhi [Suggesting a System of PoliticalParty Competition], http://bbs.futurechinaforum.org/viewtopic.php?t=682 (last visitedFeb. 1, 2007).

233. For audio commentary on this, see Gao Zhisheng, Yao ba weilai Zhongguo delunkuo gaosu Zhongguo ren [ Telling the Chinese People About the Contours of a Future China],SOUND OF HOPE, Aug. 11, 2006, http://soundofhope.org/programs/162/44676-1.asp(last visited Feb. 1, 2007).

234. Some attributed the fact that he was not locked up for such a long time towillingness among some in the highest leadership to protect him. See Wu Fan, Jie GaoZhisheng xianxiang zhi mi, pou zhonggong neibu maodun zhijie [Solving the riddle ofthe Gao Zhisheng Phenomenon, cutting through the knot of internal contradictions inthe CCP] May 5, 2006, http://www.peacehall.com/news/gb/pubvp/2006/05/200605112056.shtml (last visited Feb. 1, 2007).

235. For information on the details of his abduction, which took place on August


first to sign a public letter of commitment to join Gao's legalsupport team, along with over one hundred other Chinese law-yers. 236 Gao's abductors were plainclothes agents of the BeijingPublic Security Bureau.23 7 As he went into detention Gao lostthe ability to communicate with the comparative freedom hehad had before. The story of his detention and exposure tothreats and to torture, of his criminal trial, conviction for "plot-ting to subvert the political power" and subsequent "release" intocontinued strict surveillance at the end of 2006 is in part told byreports in the news media and on related websites; 23s but it wasno longer a story which he could tell for himself. As traced inthis Article, Gao Zhisheng's story ends at this point.

VIII. CONCLUSION: THE POINT OF "RIGHTS-DEFENDING"AND THE LIMITS OF RFORM

This Article discusses the possibilities of cause lawyering andrights activism in conditions of autocratic party rule and frag-mented law. It juxtaposes two distinct approaches available toChinese rights defenders at the present time. One applies a con-sequentialist and pragmatist mode of thinking to the goal of in-stitutional reform. Its representatives use the specific rules pub-licized by the Party-State and seek to show their meaning forrights protection, for instance by promoting cases of politically"harmless," successful rights protection; and by academic andother debates directed at influencing decisions by those in

15, 2006 in Shandong, see Yan Ming, Gao Zhisheng beijuliu shencha, hai nei wai yunnianghuyu shifang [ Gao Zhisheng detained for investigation, calls for his release are being prepared inChina and abroad], RADIO FREE AsIA, Aug. 18, 2006, http://www.rfa.org/mandarin/shenrubaodao/2006/08/18/gaozhisheng/ (last visited Feb. 1, 2007).

236. See Posting of Cai Chu, 102 ge gejie renshi zucheng "Gao Zhisheng falu houyuan man [102 People from Different Groups in Society Form a Legal Support Teamfor Gao Zhisheng], Aug. 25, 2006, http://peacehall.com/news/gb/china/2006/08/200608250429.shtml (last visited Feb. 1, 2007).

237. For several weeks there was no report of where he was held, although XinhuaNews Agency carried a notice of a few lines. "The Beijing Municipal Bureau of PublicSecurity said on Friday that it has detained Gao Zhisheng for questioning for his sus-pected involvement in criminal activities. Gao, 42, of Han nationality, was residing inRoom 202, Unit 7 of Building 11, Xiaoguan Beili, Chaoyang District, Beijing, the bu-reau said in a brief press release." Beijing Police Detains Gao Zhisheng, XINHUA NEWS, Aug.18, 2006, http://www.chinadaily.com.cn/china/2006-O8/18/content_668137.htm (lastvisited Apr. 16, 2007).

238. Reports are available from websites such as Chinese Human Rights Defenders(http://crd-net.org/Article/), Radio Free Asia (http://www.rfa.org/mandarin/), andBoxun (http://www.peacehall.com/).

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power. This approach combines a consequentialist conceptionof responsibility for outcomes with an assumption that institu-tional reform will gradually realize pre-conceived goals of therights activists, who are generally committed to ideas of rightsprotection, justice, and equality. It confides in the tendency oflegal processes, qua legal processes, to produce justice, 2 3 9 andhistorically it can be characterized as the initial mode of actionchosen by P.R.C. legal professionals, who believed in the neces-sity of constitutional restraints on political power. Such profes-sionals began to emerge from the start of the "opening up andreform" process 240 twenty-five years ago, and a reformist mindsethas characterized the work of many lawyers, legal academics, andinternational organizations devoted to promoting rights protec-tion in China. The pragmatic reformist approach most recentlycelebrated a victory in 2003, when the Sun Zhigang case hap-pened, and an unconstitutional legal regulation was repealed asa consequence.

But, although reformist constitutionalists successfullybrought the issue of bad law to the notice of the general Chinesepublic, they may have failed fully to appreciate the potentialdimensions of bad law in conditions of autocratic governance.They may have invited people, as one critic put it, to "ask thetiger for his skin" by using the law against the Party-State tomount constitutional challenges, while the Party-State has beendiscovering law's usefulness as a means of controlling rights ac-tivism. This use of the law for illiberal purposes disappoints ob-servers in and outside China, who may have believed that therewould necessarily be a one-directional development toward bet-ter and better rule of law, understood in an increasingly substan-tive sense of liberal, rights-centered law strengthened by consti-tutional adjudication or judicial review-understood as genuinerule of law.

The central argument of the other, alternative, emphaticallynon-violent, yet more radical approach, represented by GaoZhisheng and the relay hunger-strike movement is that unjustState actions must be exposed and criticized as a matter of jus-tice, whatever the consequences for institutional reform. Thisapproach rejects attributions of responsibility based on predict-

239. See LON L. FULLER, THE MORALITY OF LAW 157-58 (1965).240. Gaige Kaifang.


able reprisals or backlashes. In the language of contemporarymoral philosophy it can be viewed as based on a deontologicalunderstanding of rights and moral obligation. If it is seen as amatter of strict moral obligation toward fellow human beings,the success of rights activism should not be measured by its insti-tutional consequences-such as failures and successes in law-suits, or in legal reform.

At a time when human rights activism is widely given a con-structivist, pragmatist, rule of law-oriented interpretation, Gao'sexperience therefore shows that it may not be possible for pro-test against human rights violations to serve an institutional re-form goal, and that activists may pursue goals which are both lessand more ambitious than that of reforming the legal and politi-cal institutions of their system. As the more cautious rights activ-ists rightly point out, and as the experience of Gao Zhishengdescribed here illustrates, some consequences of rights activism,especially that which was described as "more radical," may beterrible.

In the example considered here, it appeared that the con-frontation with extreme wrongs done to others transformed GaoZhisheng's sense of how such consequences mattered. The les-son he drew was not pragmatic. It was not that one must waituntil conditions would have ripened for certain types of wrongto be addressed. It was, rather, that one could not expect withany certainty to gain control over the circumstances that mightallow for them to be addressed in the future. In Gao Zhisheng'swords, a duty remained "to show that we are human beings" byexposing the wrongs of the present.

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